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 Estech proposes to construct and operate a phosphate mine (the Duette mine), beneficiation plant and rock-drying facility on approximately 10,000 acres owned by it in northeastern Manatee County, Florida. No chemical plant will be located at the site. The mine site is located in the watershed of Lake Manatee, which serves as a source of potable water for residents of Manatee and Sarasota Counties. The mine site is situated between the North Fork and the East Fork of the Manatee River, which converge approximately six miles downstream of the mine site. The site is approximately eighteen miles upstream from the Manatee County utilities' drinking-water intake structure. Estech has applied for and received approval of its proposed development pursuant to the development of regional impact requirements of Chapter 380, Florida Statutes. Estech has also received the necessary air pollution source construction permits for its proposed rock-drying facility from DER and the United States Environmental Protection Agency and a consumptive use permit from the Southwest Florida Water Management District. The master mining plan shows that, after the first few years of operation, reclamation of areas disturbed by mining will proceed concurrently with mining of new portions of the site. The proposed operation of the Duette mine differs in two significant respects from the mining practices followed at other phosphate mines. First, all water from areas disturbed by mining and not yet fully reclaimed will be contained within the plant water system and discharged, if at all, only through permitted discharge points. There will be no uncontrolled runoff from disturbed areas. Second, Estech will use a sand- clay mix in its reclamation program, rather than making separate deposits of sand tailings and dilute waste clays as has been the general practice at other mines. In connection with its mining project, Estech proposes to build one 480-acre, above-grade, initial clay settling area (ISA). Estech applied to DER on May 1, 1980, for the requisite dam construction permit. Supplements to the application were furnished to the Department in April, 1981. The ISA serves two purposes: It operates as an impoundment area for waste materials generated from the initial phases of the mining operation, before mine cuts are available for waste disposal, and it provides one of the storage areas for large volumes of water which are recirculated during the mining and beneficiation process. The design for the earthen dam surrounding the ISA was prepared and evaluated by two Qualified engineering firms, Ardaman & Associates, Inc., and Bromwell Engineering. Estech's application to construct the dam, the dam design, the detailed earthwork specifications, and the construction drawings were certified by professional engineers registered in the State of Florida. The initial clay settling area will be located in the east one-half of Section 6, and the west one-half of Section 5, in Township 34 South, Range 22 East, Manatee County, Florida. Ardaman & Associates, Inc., conducted a detailed investigation to evaluate the suitability of the proposed site. A total of eighty test borings were taken and analyzed to determine the characteristics of the soils present at the site and their suitability as construction materials. On-site inspections were conducted by both Ardaman & Associates, Inc., and Bromwell Engineering. To ensure that the area is not subject to sinkhole activity, a visual inspection was made; aerial photographs, U.S.G.S. maps, and reports of the Florida Geological Survey were examined; and local residents were interviewed. As an additional precaution, test borings were taken in several minor depressions located on Estech and adjacent property. Analyses of these borings verified that the depressions were not sinkholes. Based on the site investigation conducted by Ardaman & Associates, Inc., it is unlikely that a sinkhole would occur either in the general vicinity of the dam or at the specific location of the dam. A soil-testing program was conducted which included thirty-seven standard penetration test borings and forty-three auger borings (i.e., eighty test borings) spaced around the perimeter of the dam, as well as in potential borrow areas. Over 639 soil samples were taken and returned to the laboratory where they were analyzed. Field tests included 606 penetration resistance tests, and six in situ permeability tests. Laboratory tests included 234 grain- size analyses, thirty-four permeability tests, ten triaxial shear tests and two compaction tests. Estech's proposed ISA dam will provide a minimum freeboard of five feet below the inside crest. The outside crest of the top of the dam is six inches higher than the inside crest, which will force all crest drainage to the inside of the dam. Both inside and outside slopes are no steeper than two horizontal to one vertical. Although most phosphate dams have a crest width of twenty feet, Estech's dam will have a crest width of twenty-five feet. The additional width helps to protect against erosion and assists in the maintenance and the overall stability of the dam. Dam inspection and maintenance roads are provided. The dam design provides several positive seepage control features: As a zoned dam, relatively impervious materials will be placed in the upstream section of the dam to retard seepage. More pervious materials will be placed in the downstream sections so that any seepage can be conducted away and not build excessive hydraulic pressures within the dam. A blanket drain will be installed within the dam itself in order to collect seepage that comes through the dam. A downstream gravel drain will be installed in the return water ditch which will collect any seepage that goes through the foundation soils. The downstream slope will be flattened to a four-to-one ratio so that even if seepage were to get past the drains, the slope would remain stable. As a final check on the effectiveness of these safeguards, the dam will be filled with approximately fifteen feet of clear water prior to introducing any sand-clay mix. Piezometers will be placed at various locations around the dam to monitor the water level. Flow from the drain and in the ditch will be monitored and the dam will be inspected. The data will be checked to determine if the seepage pattern is performing according to design assumptions. A seepage analysis (using flow nets) and stability analyses were conducted using a worst case scenario which assumed the pond was filled with clear water to its maximum pool elevation. In fact, the maximum clear water depth in the pond will be only fifteen feet, rather than the more severe condition of twenty-five feet used for purposes of analysis. In addition, the least desirable engineering properties for the foundation and embankment soils were selected for these analyses. The flow nets were used to determine the location of the phreatic surface, flow lines, and lines of equal head within the foundation and fill being designed. The Estech dam design exceeds all the minimum safety factors required by Section 17-9.03(1)(e), Florida Administrative Code. The proposed dam site will be prepared by stripping all vegetation, organic detritus and any other undesirable materials from under the foundation, the drain and toe ditch. Loose surficial sands will be compacted prior to placement of fill materials, and prepared surfaces will be scarified and wetted or dried as required to obtain proper compaction. Filling operations will be completed prior to the initiation of any construction activities associated with the ISA. The general earthwork specifications prepared by Ardaman & Associates, Inc., require materials that will be satisfactory for use in the dam and exclude the use of extraneous matter which could affect the compactibility, density, permeability, or shear strength of the finished dam. Water level within the dam will be controlled by the use of three spillway structures which will be more than adequate to maintain a five-foot freeboard and to accommodate twelve inches of rainfall on the watershed during any twenty-four-hour period. Estech's proposed dam will be constructed in accordance with the general earthwork specifications and design prepared by Ardaman & Associates, Inc. All conduits through the dam will have two or more seepage collars spaced in accordance with good engineering practices pertinent to the material used for the fill. Two collars will be installed within the core of the dam. Estech has committed to provide four additional safeguards in excess of those required by Chapter 17-9, Florida Administrative Code. The additional safeguards include: Conducting an independent review of all aspects of the Ardaman & Associates, Inc., design and construction plans. Such an independent review was conducted by Dr. Leslie Bromwell and Bromwell Engineering. Proof testing the dam with clear water prior to impounding any waste materials by placing fifteen feet of water into the dam before commencing actual operations. In addition, piezometers will be installed around the dam to monitor the performance of the darn with regard to seepage through the foundation and through the dam itself. The proof test and monitoring will provide an indication of how the dam will perform under full design load. Carrying out a comprehensive instrumentation, surveillance and inspection plan, which will include the instrumentation installed during the clear water test and any additional instrumentation indicated as a result of that test. The dam will be inspected by a representative of the design engineer once a month during the first year of operation. In addition, qualified, trained personnel of Estech will conduct inspections of the dam three times a day. Estech will use sand-clay mix inside the initial settling area rather than dilute clays alone. This will provide additional protection for the Lake Manatee reservoir in that if a dam failure were to occur, the sand-clay mix would only flow a few miles from the point of the breach in the dam and would not reach the Lake Manatee reservoir. Although the most likely cause of dam failure would be piping, protection against piping through the dam is provided by the selection of materials and their method of placement. Adequate compaction of the correct materials into various zones in the dam will ensure that piping does not occur. In addition, the internal drain and the downstream drain will collect seepage that might otherwise cause erosion, which in turn could result in a piping failure. The use of sand-clay mix will further reduce any possibility of a piping failure through the foundation soils. The sand-clay mix forms an impervious layer along the floor and sides of the ISA dam, and whatever small amount of water might pass through the ISA dam will be collected by the drainage system. The design of Estech's dam will meet or exceed applicable requirements of Chapter 17-9, Florida Administrative Code; and provided that it is properly maintained, it should remain structurally sound in excess of one hundred years. The area proposed for the location of the beneficiation plant and ---- currently contains several small ponds, streams and ditches connected to the East Fork of the Manatee River. DER asserts "dredge and fill" permitting jurisdiction under Chapter 403, Florida Statutes, over certain of these ponds, ditches and streams. DER also asserts jurisdiction over the portion of an unnamed tributary that will be impacted by construction of the southern part of the ISA. The property included within the ISA and plant site was purchased by Estech from the Turner family in the mid-1960's. The Turner family had purchased the property in 1939 from timbering interests. Prior to the Turner purchase, the land contained some isolated depressions that collected water during the rainy season. There were no channelized watercourses. In order to enhance the use of the land as pasture, the Turners dug numerous agricultural drainage ditches in the 1940's. These ditches connected the various isolated depressions located on the property with the river. This ditch system allowed for the more rapid transport of standing water out of the pasture area so that the grass would not "sour" in the hot summer months. The ponds and the connecting drainage ditches are not currently susceptible to navigation for commerce by boats or other forms of customary water travel because they are too shallow and the flows are too intermittent. It is clear that the area in question was not susceptible to navigation before the ditches were artificially created in the 1940's. There is no physical indication in the ISA area of the existence of any channel capable of navigation that might have been in existence as of 1845. In 1975 and 1976 the ponds and drainage ditch system began to receive runoff and irrigation drainage from a row-crop operation operated to the north of the ISA area. This flow is dominated by irrigation water from a ten-inch well. Approximately seventy percent of the flow through the ponds and drainage ditches is made up of this agricultural water. Row-crop farming operations are scheduled to terminate at the latest in May of 1982. The land will then be planted in permanent pasture, and virtually the entire source of the agricultural runoff to the system will no longer exist. Only a very small portion of the northernmost pond area (Pond No. 3 on Figure 2 of Estech Ex. 3D) has been mapped as a flood-prone area by the U.S. Geological Survey. This indicates that the area is of a relatively high elevation not subject to continuous water flow. The total area of DER-claimed "dredge and fill" permitting jurisdiction involves approximately 13.8 acres. Some portion of this area contains water at times of the year and contains lands on which the dominant species are one of, or a combination of, those species listed in Section 17- 4.02(17), Florida Administrative Code, as indicators of the "landward extent of waters of the state." The ponds and connecting ditches ultimately connect to the unnamed tributary, which in turn connects to the East Fork of the Manatee River. Estech proposes to fill the areas located within DER's jurisdiction with overburden materials (sand, random fill and silty sand) taken from upland areas located on site. The fill materials will raise the low-lying areas to an elevation at or above that of the current landward extent of DER's jurisdiction. This filling will be completed before any other construction activities associated with the ISA or plant site are commenced. A water-quality sampling program demonstrated that, when present, the waters contained in the ponds and connecting ditches are derived largely from irrigation return water which is of lower quality than the waters in the East and North Forks of the Manatee River. The wetlands areas in question simply are not of a size or quality sufficient to provide any significant water quality benefit. The drainage area served by the ponds and connector ditches is small. The quantity of water from this area contributed to the East Fork of the Manatee River is insignificant. Filling of the ponds and connecting ditches will not cause or contribute to a long- or short-term violation of water-quality standards in waters of the State outside of the ISA area, nor would it reduce the quality of waters of the State outside the ISA area below the Class IA classification of the river as long as adequate turbidity control measures are employed during construction activities. Estech has committed to the use of such turbidity control measures. Estech applied to DER for permits to construct two discharge points through which excess water within its system could be discharged into the East Fork (discharge point 002) and North Fork (discharge point 003) of the Manatee River. In its original applications, Estech proposed almost continual discharge of excess water from its system. Subsequent to that time, the proposal was modified in a number of ways to reduce or eliminate the frequency and volume of discharges, as follows: The usage of river water from the East Fork of the Manatee River was eliminated, thus eliminating the need for an intake structure. An in-process water treatment plant will be built to eliminate the need for using up to 4,100 gallons of deep-well water per minute in the flotation process, except during periods of low rainfall, thereby decreasing the amount of potential excess water in the system. The storage capacity of the below-grade reservoir will be increased by constructing a dike around it. A comprehensive water balance study for the Duette mine was performed to determine the amount of storage necessary to contain all of the excess water predicted to be accumulated over the life of the mining operation and to develop a plan for controlling any predicted discharges so as to minimize their impact on the receiving water bodies. Whether or not there will be a discharge from the system depends on the amount of storage available and the amount of excess rainfall which must be stored. For the system to be in balance, the amount of water coming into the system must equal the amount leaving the system. If more water enters the system than leaves, then the amount of water stored increases. If the needed storage exceeds the maximum storage available, an overflow or discharge will occur. Conversely, if the water leaving the system exceeds the water entering the system, then the water stored in the system will be depleted. If the water in storage is depleted below the level needed for operation of the mining and beneficiation process, then "make-up" water must be added to the system by pumping from permitted deep wells. Because the amount of water entering and leaving the system varies from time to time, the amount of storage needed must be calculated on the basis of cumulative inflows and outflows over the life of the system. The sources of water entering the Duette mine system, in order of importance, are rainfall, water in the ore being mined (matrix), net seepage into the mine cuts, and water from shallow wells. An additional source would be any make-up water pumped from deep wells. Water is consumed or leaves the system through evaporation, disposal as part of sand-clay mix and sand tailings, shipment off site as part of the wet phosphate product or evaporation in the rock dryer as wet product is dried for shipment, and seepage losses. In addition to being the largest contributor of water to the system, rainfall is also the most variable. Twenty-four years of rainfall data are available from National Oceanic and Atmospheric Administration (NOAA) records for 1956 to 1979 for the Fort Green rainfall station, which coincidentally is located at Keentown almost in the center of the Duette mine site. Average annual rainfall at the Fort Green station is 54 inches per year, but has ranged from a low of 38 inches in 1974 to a high of 84 inches in 1960. Monthly rainfall has similarly varied from a low of zero inches in April, 1967, to a high of 19.11 inches in July, 1960. If the average annual rainfall of fifty-four inches per year occurred evenly on a daily basis over the life of the mine, the water consumed by the system would exceed the approximately 9,000 gallons per minute contributed to the water system by rainfall at the Duette site. Thus, the system would never discharge. However, because rainfall varies significantly from year to year while water consumption remains more constant, storage is required to hold the water from long-term, above-average rainfall until it can be used in the system. To evaluate the impact of variations in rainfall, a series of computer analyses were performed which matched the twenty-four-year rainfall record from Fort Green with the water consumption during the mine life to produce a "worst case" analysis in which years having the highest rainfall were matched with the mining years having the lowest water consumption. These analyses show that under the "worst case" rainfall, 16,620 acre feet of storage would be adequate to prevent any discharge during the mine life. Under this "worst case" scenario, if only 10,000 acre feet of storage were available and discharges were not controlled in any way, there are predicted to be approximately thirty days of discharge from the system out of a mine life of over 8,700 days (twenty-four years). Without any control, the discharges from the system would not necessarily coincide with periods of peak receiving stream flow. Rainfall records covering a longer period of time are available from the NOAA rainfall station at Bartow, located several miles from the site. While there have been twenty-four-year periods during which the average rainfall recorded at Bartow exceeded the twenty-four-year average rainfall recorded at Fort Green, the Fort Green station has experienced a four-year accumulation of rainfall which is very similar to the highest four-year accumulation at Bartow. Since potential overflows of the Duette system are more dependent on the accumulation of several years of heavy rainfall than on a single year's rainfall event or long-term averages, the use of the Fort Green data in producing the "worst case" rainfall scenario was appropriate. However, as a double check, an analysis was done combining the highest twenty-year rainfall record from Bartow (1921 to 1940) with the highest four-year record from the Fort Green station. This "worst-worst case" analysis produced a twenty-four-year simulated accumulation of 1,411 inches of rainfall, i.e., an average of 58.8 inches a year for the twenty-four-year period. When this larger rainfall simulation was compared with projected water usage of the mine, it showed slightly less storage would be required to prevent any discharge during the mine life (16,491 acre feet) than the storage required under the arfalysis using only the historical Fort Green data (16,620 acre feet). This apparent anomaly of higher rainfall requiring less storage occurs because the timing of the simulated rainfall based on the NOAA records reduced the need for deep-well, make-up water coming into the system prior to the critical years of the rainfall cycle. Two aspects of the water-balance calculation were the subject of conflicting expert testimony: the effect of possible slower consolidation of sand-clay mix in the initial clay settling area on the available storage capacity of the system, and the amount of mine cut seepage which can be expected. Based on experience with consolidation of dilute clays, which start with a smaller percentage of solids and can be expected to consolidate more slowly than the flocculated sand-clay mix to be used by Estech, the consolidation rate used in the Estech water-balance calculations is reasonable. Moreover, it is clear that the rate of consolidation of sand-clay mix does not directly impact the volume of available storage. No water enters the system as a result of consolidation. As the sand-clay mix consolidates, water which had been trapped within the sand-clay mix is freed and rises to the surface. However, the total volume occupied by the combination of the sand-clay mix and its associated water does not change; therefore, the amount of available water storage area does not chance. Further, the estimate of mine cut seepage into the system used in calculating the water balance is also reasonable. The total water storage available on site varies from year to year throughout the life of the mine. Excluding the two active mining areas, the Duette mine system has a minimum storage capacity after the fifth year of mining of approximately 10,000 acre feet, consisting of 3,500 acre feet in the below- grade reservoir, 4,000 acre feet in the sand-clay reclamation areas, and 2,500 acre feet in the initial clay settling area. If the two active mining areas (excluding active dragline cuts) are used for additional water storage, then after the fifth year of mining, the available storage fluctuates between a low of approximately 16,682 acre feet and a high of approximately 27,149 acre feet. Not included in the above calculations are an additional 1,000 acre feet of storage located in the active dragline cuts which is available for use on an emergency basis. Estech did not initially propose to use active mining areas for water storage. Instead, it proposed to use only the 10,000 acre feet of storage available in other areas. However, there is one chance in twenty-five that 10,000 acre feet will not be sufficient to store the predicted accumulations of water and that overflows would occur if only 10,000 acre feet of storage were used. To prevent uncontrolled overflows, Estech originally proposed to make controlled discharges at a rate of no more than fifteen percent of stream flow whenever necessary to avoid the risk of an overflow. Therefore, the recirculation system and discharge points were designed to control discharges so that they will not exceed fifteen percent of stream flow at the time and point of discharge. This is accomplished by measuring the flow in the receiving streams and metering the amount of discharge to stay at or below fifteen percent of the stream flow. To control discharges in this manner requires that discharges commence before the storage system is completely filled, so that surge capacity remains available to prevent an overflow while controlled discharges are being made. An analysis of the historical Fort Green station daily rainfall data and historical daily stream flow data for the Manatee River demonstrates that if discharges are made at a rate of fifteen percent of stream flow whenever storage in the system exceeds 8,500 acre feet, the accumulated water would never exceed 10,000 acre feet; and, therefore, there would be no uncontrolled discharges. However, even more storage is now available. Based on the availability of 16,682 to 27,149 acre feet of storage during the critical years of the mining operations and the demonstration that 16,620 acre feet of storage would be sufficient to prevent any discharge from the system under the predicted worst case rainfall scenario (which has less than one chance in 1,000 of occurring), there is a reasonable certainty that no process water will be discharged from the system over the life of the mine provided that Estech is required to use the two active mining areas (excluding active dragline cuts) for additional storage if needed. Estech has agreed to take all measures necessary to prevent surface water discharges from the Duette mine, including the construction and utilization of the maximum available storage area. Included within the maximum available water storage area are the initial waste disposal area (ISA); the 210- acre surge/storage reservoir; the sand-clay reclamation areas; the ditch system; the plant water ponds (i.e., storage within the recirculation system); the two active mining areas; and, on an emergency basis only, the active dragline cuts wherein the draglines are physically operating. Estech has further agreed to construct an earthen embankment pursuant to Chapter 17-9, Florida Administrative Code, standards around the 210-acre reservoir so that it can contain an additional 3,500 acre feet of storage. Further, Estech has agreed to not construct the stream intake structure previously planned to be located at the site of the 210-acre reservoir on the East Fork of the Manatee River. Based on the availability of 16,682 to 27,149 acre feet of storage during critical years of mining operations, Estech's stipulations regarding its management of on-site water, and the demonstration that 16,620 acre feet of storage is sufficient to prevent any discharge from the system, Estech has provided reasonable assurance that no process water will ever be discharged from the Duette mine during its lifetime and that operation of the Duette mine, which is a potential source of pollution, will not ever result in pollution. Three of these consolidated cases involve the water quality of any potential discharges of the process water from the Duette mine site. Specifically, these three cases involve permits for discharge points 002 and 003; the state certification for the NPDES permit; and Estech's request for mixing zones, zones of discharge, permit conditions, and site specific alternative criteria. The water-quality impact of discharges depends on a combination of the quality of the discharge, the quantity of the discharge, and the quality of the receiving water body. There is a great deal of evidence in the record as to the expected quality of the process water which could potentially be discharged from the mine's water storage system. The methods used by Estech's consultants to predict the quality of the process water included: (1) a laboratory-scale simulation of the Duette beneficiation process using Duette water and matrix, (2) a simulation of the Duette process which subjected sand and clay slurries from the Watson mine to the sand-clay mixing process proposed for Duette, and (3) an analysis of data from a small-scale simulation of the Duette process performed by Estech at the Watson mine. Because a laboratory-scale simulation may not be indicative of the expected results of full-scale operation, a laboratory simulation of the Watson mining process was compared to actual data from the Watson mine to use as a guide in scaling up the results of the laboratory simulation of the Duette process. Estech's substantial "water-quality" evidence is inconclusive. Many of the opinions of its experts are based upon or incorporate the results of the tests described in the preceding paragraph. Those tests fail to demonstrate scientific accuracy. The laboratory-scale simulation of the Duette process involved two components: (1) water from the Duette site which was accidentally contaminated with isopropyl alcohol used to disinfect the barrels in which the water was transported, and (2) Duette matrix samples obtained from a warehouse where they had been stored approximately a year earlier. The "full-scale" Watson test used Watson matrix, not Duette matrix. All experts agree that phosphate matrix varies from location to location. Estech's experts testified that the "Watson process" constituents and the "Duette process" constituents are not comparable. The laboratory-scale Watson process utilized water obtained from the Watson mine over only one four-day period. The water used was a single, composite sample. Further, during the laboratory testing, the water was contaminated by high suspended solids due to "scalping" the water too closely. The unreliability of Estech's water-quality studies is further verified by the number of reports and "supplemental" reports issued over a short period of time, between the initial schedulings of these cases for final hearing and the final hearing. Some of the "supplemental" information changed the data contained in the prior reports, whether sponsored as more accurate data or typographical errors.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT a final order be entered: In Case No. 80-1486 approving Estech's application for a permit to construct the initial settling area, subject to the applicable conditions set forth in the initial Notice of Intent to Issue Permit and including as an additional condition that no discharge be made through Estech's proposed discharge points 002 and 003; In Case No. 81-040 approving Estech's application for a fill permit for the initial settling area and plant site area, subject to the applicable conditions set forth in the initial Notice of Intent to Issue Permit; In Case No. 81-039 dismissing Estech's application for permits for discharge points 002 and 003 for the reason that they are note subject to permitting jurisdiction; In Case No. 81-335 dismissing Estech's request for state certification of Estech's proposed National Pollutant Discharge Elimination System (NPDES) permit for discharge points 002 and 003 on the ground of mootness; and In Case No. 81-995 dismissing Estech's request for mixing zones, zones of discharge, permit conditions, and site specific alternative criteria on the ground of mootness. RECOMMENDED this 15th day of March, 1982, in Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of March, 1982. COPIES FURNISHED: E. N. Fay, Jr., Esquire Mann and Fay, Chartered Post Office Box 959 Bradenton, Florida 33506 William L. Earl, Esquire William F. Tarr, Esquire Peeples, Earl, Moore & Blank, P.A. One Biscayne Tower, Suite 3636 Two South Biscayne Boulevard Miami, Florida 33131 Richard M. Goldstein, Esquire One Biscayne Tower, Suite 1980 Two South Biscayne Boulevard Miami, Florida 33131 Robert C. Apgar, Esquire Peeples, Earl, Moore & Blank, P.A. 300 East Park Avenue Tallahassee, Florida 32301 Richard L. Smith, Esquire Richard E. Nelson, Esquire Nelson, Hesse, Cyril, Weber, Smith & Widman 2070 Ringling Boulevard Post Office Box 2524 Sarasota, Florida 33577 Thomas W. Reese, Esquire 123 Eighth Street North St. Petersburg, Florida 33701 David M. Levin, Esquire Alfred W. Clark, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Lawrence E. Sellers, Jr., Esquire Robert L. Rhodes, Jr., Esquire Holland & Knight Post Office Drawer BW Lakeland, Florida 33802 Wade L. Hopping, Esquire Hopping, Boyd, Green & Sams Suite 420, Lewis State Bank Bldg. Post Office Box 6526 Tallahassee, Florida 32301 Calvin J. Livingston, Esquire Holland & Knight Post Office Drawer 810 Tallahassee, Florida 32302 Ms. Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION MANATEE COUNTY, FLORIDA, Petitioner, and SARASOTA COUNTY, FLORIDA, AND MANASOTA-88, INC., Intervenors, CASE NO. 80-1486 vs. STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondent, and ESTECH GENERAL CHEMICALS CORPORATION, Intervenors. / ESTECH GENERAL CHEMICALS CORPORATION, Petitioner, vs. CASE NO. 81-039 STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondent, and MANATEE COUNTY, FLORIDA; SARASOTA COUNTY, FLORIDA; and MANASOTA-88, INC., Intervenors. / MANATEE COUNTY, FLORIDA, Petitioner, and SARASOTA COUNTY, FLORIDA, and MANASOTA-88, INC., Intervenors, vs. CASE NO. 81-040 STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION, and ESTECH GENERAL CHEMICALS CORPORATION, Respondents. / ESTECH GENERAL CHEMICALS CORPORATION, Petitioner, vs. CASE NO. 81-335 STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondent, and SARASOTA COUNTY, FLORIDA; MANATEE COUNTY, FLORIDA; and MANASOTA-88, INC., Intervenors. / ESTECH GENERAL CHEMICALS CORPORATION, Petitioner, vs. CASE NO. 81-995 STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondent, and SARASOTA COUNTY, FLORIDA; MANATEE COUNTY, FLORIDA; and MANASOTA-88, INC., Intervenors. /
Findings Of Fact On or about October 30, 1984, Lawrence E. Bennett, a consultant engineer for Peninsula, forwarded to DER's domestic waste engineering section an application to construct/operate a domestic wastewater treatment and disposal system along with the appropriate plans and a check for the fee. The package included proposals for construction of a 300,000 gpd splitter box and addition of a 100,000 gpd contact stabilization plant. Thereafter, on May 22, 1985, Mr. Bennett submitted a revised copy of the application pertaining to the 100,000 gpd expansion initially submitted as above. The revised application reflected Peninsula's proposed outfall to the Halifax River which was applied for under separate permit. By application dated October 7, 1983, as revised on May 15, 1985, Peninsula proposed to construct an outfall discharge into the Halifax River from the secondary treatment plant. By letter dated October 29, 1984, Mr. Bennett advised DER, inter alia, that the discharge rate would be an ADF of 1.25 mgd. The application for the additional 100,000 gpd plant and splitter box also provided for a chlorination facility. This expansion was needed because 200,000 gpd capacity is already committed to serve current residents and customers of the utility. The new construction is designed to accommodate established future demand. In Mr. Bennett's opinion, the design of this facility will accommodate all DER criteria and standards. The outfall facility proposed in the second project will be a pvc forced main for a part of the distance with iron pipe for the remainder and a lift station attached to pump the effluent to a point in the river selected where the river is deep enough to meet DER water criteria. The initial permit application on this project called for discharge into a portion of the river which did not meet water quality standards. As a result; DER suggested discharge point closer to the center of the river, and this change is now planned. At this point, the outflow will meet DER standards. Intents to issue the permits, as modified, were issued in August 1985. Peninsula has also filed for permits with the Florida Public Utilities Commission, the United States EPA, and the U.S. Army Corps of Engineers for these projects. The plans are based on the estimated population expansion called for in the next few years. Peninsula is fully capable, financially, of providing and paying for the projected improvements. In the past, it has always provided sufficient funding to do that which is called for under its permits and which is necessary. The waters in question here are Class III waters of the State, mainly recreational. There is no shellfish harvesting in the area because of the pollution of the Halifax River, condition which has existed since at least 1941. Results of tests conducted by experts for Peninsula show the quality of the water presently coming out of the treatment plant is cleaner than that currently existing in the Halifax River. The outfall pipe in question will have the capability of handling approximately 1,200,000 gpd. Latest reports from the water treatment plant indicate that the current average daily flow is 150,000 gpd representing approximately 75% of capacity. The design estimated for this project was based on a 250 gpd per unit use rate multiplied by the estimated number of units presently existing and to be constructed in the period in question. It is estimated however, that within two to three years even this project will be insufficient and Peninsula will have to file an additional request for expansion. Construction will have no detrimental environmental effect on the waters of the Halifax River. Mr. Bennett recommends discharge into the river rather than pumping the effluent backup to Port Orange because the local dissipation rate into the Halifax River, which is called for under these projects, is much quicker than that at Port Orange. Studies run on siting of the outfall pipe location which is close to Daggett Island included studies relating to dilution calculation and water quality of the effluent versus water quality of the river near the outfall. The project was, therefore, sited in such a manner as to provide for the least possible detrimental effect. Those studies, however, were for the original outfall location, not the present location as proposed by DER which is approximately 150 to 200 feet away. In the experts' opinion, however, there is very little difference in the two sites. The Daggett Island site is not unique in any way. It is a mangrove swamp of approximately 3 to 4 acres with nothing on it. Once the pipe is buried, it will be difficult to know that it is there. Even during construction, there would be little detrimental effect or disruption to the river ecology. Mr. Bennett's conclusions are confirmed by Mr. Miller; a DER engineer specializing in wastewater facility permits who has reviewed the plans for expansion of the plant for completeness and adequacy and found that they were both. The approval of the outfall pipe initially was made in Tallahassee based on the original siting. He reviewed it again, however, and determined that both projects are environmentally sound and conform to the DER standards. Rule 17-6, Florida Administrative Code, requires surface water discharge to have secondary treatment activity prior to discharge and the discharge cannot exceed 20% 80D and suspended solids. According to DER studies; the secondary treatment afforded the water at this location was adequate with the caveat that the District might want to require an extension of the outfall to the main channel of the river to promote tidal flushing of the effluent. It was this change which was; in fact, made by the District office. Without the change, the incoming tide would take the wastewater up into Daggett Creek. By moving it as suggested, west of the point of Daggett Island, the tide would go up river rather than into the creek taking the effluent with it. Concern over the creek is due to its limited natural flushing as opposed to the greater natural flushing of the river. It was the intent of all parties to achieve the desired result and move the outfall point; if at all possible, at no increase in cost. Consequently, the pipeline was moved at the same length with a slight possible addition to take the outlet to the same depth and this change became a condition to the issuance of the permit. The Peninsula will also need a dredge and fill permit in order to accomplish the work in question. The outfall plans (both construction and discharge) meet the requirements set forth in the pertinent provisions of Rule 17-6, Florida Administrative Code. DER evaluated post- construction, concluding that the new point source discharge would not violate these standards. However, prior to approval of these projects, DER did not perform a biological, ecological, or hydrographic survey in the area. As a result, it cannot be said that the criteria outlined in Rule 17-4.29(6), Florida Administrative Code, will not be adversely affected by the outfall pipe. Nonetheless, these surveys were not deemed necessary here. EPA denial of the NPDES (National Pollution Discharge Elimination System) permit, would have no impact on DER's intent to issue the instant permits. NPDES permits have no bearing on the state permitting process. If the NPDES permit is denied, the utility cannot discharge its effluent into the river. The state permit merely authorizes the construction. The NPDES permit applies to the outfall portion of the project, not to the treatment plant. Only if it could be shown there was a longstanding adverse effect on the water quality so as to bring it below standards, would this construction not be permitted. The depth of the water in the proposed area of the outfall is five feet. A 12-inch pipe would extend below the soil with an upturn to exit into the bottom of the river. Short term impacts of actual construction are not relevant to the permitting process. If there are any, they would be related to and considered in the dredge and fill permitting process. This conclusion is supported by the testimony of Jan Mandrup-Poulsen, a DER water quality specialist who, in his analysis of the instant projects, first looked at the plans for the outfall just a week before the hearing. By this time, the water quality section of DER had previously considered the project and he is familiar with the suggested change in the outfall location. In November 1985, he spent several days on a boat on the Halifax River in this area collecting data. His inquiry and examination showed that in the area in question, there are no grass beds, oyster beds, or anything significant that would be adversely affected by the location of the pipe and the outlet. The pipe outlet, as suggested, is far enough out into the river to keep it under sufficient water at all times to promote adequate flushing. In his opinion, the proposed discharge will be quickly diluted and will not violate the standards or other criteria set out in Section 17-3.121, Florida Administrative Code. In contrast to the above, Mr. Richard Fernandez, a registered civil engineer with a Master's Degree in environmental engineering, who did a study of these projects for TPI, indicated that the County 201 plan relating to this area, mandated by the federal government, calls for the eventual closing of all independent wastewater treatment plants with ultimate delivery of all wastewater to the Port Orange facility. If implemented, this plan calls for the conversion of the Peninsula facility to a pump station for the transmittal of effluent to Port Orange. In his opinion, the proposed discharge standard, as evaluated here, for the secondary treatment facility, is very high for such a facility. He feels the surface water discharge content of dissolved oxygen and suspended solids should be lower. In addition, he is of the opinion that the degree of treatment of discharged water required by the facilities in question here is too low and lower than typical secondary discharge points elsewhere in the area. Nonetheless, Mr. Fernandez concludes that while the intended facility here would probably not lower the quality of river water below standards, it is not in the public interest to construct it. Having considered the expert testimony on both sides, it is found that the construction requested here would not create sufficient ecological or environmental damage to justify denial. The proposals in the 201 plan calling for the transmittal of all effluent to Port Orange would not be acceptable to DER. The cost of such a project and the ecological damage involved would be so great as to render the project not even permittable. The currently existing percolation ponds used by the facility at Port Orange are not adequate to serve current needs and leech pollutants into the surrounding waterway. While the exact transmission routes called for under the 201 plan are not yet set, there would be substantial ecological problems no matter what routing is selected. There would be substantial damage to bird habitat, mangrove, and other protected living species unless some way were found to get the pipe across the river in an environmentally sound fashion. Consequently, DER has taken the position that the current proposals by Peninsula are superior to any plan to transmit waste to Port Orange.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore RECOMMENDED THAT DER: Enter an order dismissing with prejudice Volusia County's Petition in DOAH Case No. 85-3029 and, Issue permits to Peninsula Utilities, Inc., for the construction of a 100,000 gpd expansion to its existing wastewater treatment plant and to construct a river outfall line as was called for in the amended specifications listed in the application for this project. RECOMMENDED this 25th day of April, 1986, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 1986. COPIES FURNISHED: Martin S. Friedman, Esquire Myers, Kenin, Levinson & Richards 2544 Blairstone Pines Drive Tallahassee, Florida 32301. Deborah Getzoff, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Rd. Tallahassee, Florida 32301 Lester A. Lewis, Esquire Coble, McKinnon, Rothert, Barkin, Gordon, Morris and Lewis, P.A. P. O. Drawer 9670 Daytona Beach, Florida 32020 Ray W. Pennebaker, Esquire Assistant County Attorney P. O. Box 429 Deland, Florida 32720 Victoria Tschinkel Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 APPENDIX 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. Rulings on Proposed Findings of Fact Submitted by Petitioner, TPI 1-2. Accepted in paragraph 17. 3-4. Rejected as contra to the weight of the evidence. Rulings on Proposed Findings of Fact Submitted by Peninsula 1-13. Accepted in the Findings of Fact of the Recommended Order. Rulings on Proposed Findings of Fact Submitted by Respondent, DER 1. Accepted and incorporated in Finding of Fact 1 and 2. 2-3. Accepted and incorporated in Finding of Fact 5. 4-5. Accepted and incorporated in Finding of Fact 20 and 21. 6. 7. Accepted in Finding of Fact 19. 8. Accepted in Finding of Fact 14. 9. Accepted in Finding of Fact 9. 10. Accepted in Finding of Fact 8 and 21. 11. Accepted in Finding of Fact 14 and 17. 12-13. Accepted in Finding of Fact 14 and 17. 14-15. Rejected as a statement of evidence and not a Finding of Fact. Accepted in Finding of Fact 17. Recitation of Mr. Miller's testimony is not a Finding of Fact. The conclusions of Mr. Mandrup- Poulsen's testimony is not a Finding of Fact. Recitation of Mr. Mandrup-Poulsen's testimony testimony is not a Finding of Fact. Accepted in Finding of Fact 23. Recitation of testimony is rejected as not a Finding of Fact. Conclusions drawn from that testimony accepted in Finding of Fact 24.
Findings Of Fact As planned, Phase I of Foxwood Lake Estates will consist of 300 mobile homes, which would require treatment of up to 45,000 gallons of sewage per day. The proposed sewage treatment plant would have a capacity of 46,000 gallons per day and would be capable of expansion. It would discharge treated, chlorinated water into a completely clay-lined polishing pond that has been designed for the whole of Foxwood Lake Estates at build-out; capacity of the polishing pond would be three times the capacity necessary for Phase I by itself. From the polishing pond, water is to flow into one or both of two evaporation-percolation ponds, either of which would be big enough for all the sewage expected from Phase I. The sides of these ponds would be lined with clay and a clay plug would constitute the core of the dike on the downslope side of each pond. According to the uncontroverted evidence, effluent leaving the treatment plant for the polishing pond would have been effectively treated by the latest technology and would already have been sufficiently purified to meet the applicable DER water quality requirements. The applicant proposes to dig the triangular polishing pond in the northwest corner of the Foxwood Lake Estates property, some 400 feet east of the western property line. The evaporation-percolation ponds would lie adjacent to the polishing pond along an axis running northwest to southeast. Their bottoms would be at an elevation of 164.5 feet above mean sea level and they are designed to be three feet deep. The evaporation-percolation ponds would lie some 300 feet east of the western property line at their northerly end and some 400 feet east of the western property line at their southerly end. A berm eight feet wide along the northern edge of the northern evaporation-percolation pond would be 50 feet from the northern boundary of the applicant's property. Forrest Sawyer owns the property directly north of the site proposed for the evaporation-percolation ponds. He has a house within 210 feet of the proposed sewage treatment complex, a well by his house, and another well some 300 feet away next to a barn. Two or three acres in the southwest corner of the Sawyer property are downhill from the site proposed for the ponds. This low area, which extends onto the applicant's property, is extremely wet in times of normal rainfall. Together with his brother and his sister, Charles C. Krug owns 40 acres abutting the applicant's property to the west; their father acquired the property in 1926. They have a shallow well some 100 feet from the applicant's western property boundary, and farm part of the hill that slopes downward southwesterly from high ground on the applicant's property. Sweetgum and bayhead trees in the area are also a money crop. Charles C. Krug, whose chief source of income is from his work as an employee of the telephone company, remembers water emerging from this sloping ground in wet weather. Borings were done in two places near the site proposed for the ponds. An augur boring to a depth of six feet did not hit water. The other soil boring revealed that the water table was 8.8 feet below the ground at that point. The topsoil in the vicinity is a fine, dark gray sand about six inches deep. Below the topsoil lies a layer of fine, yellow-tan sand about 30 inches thick. A layer of coarser sand about a foot thick lies underneath the yellow-tan sand. Beginning four or five feet below the surface, the coarser sand becomes clayey and is mixed with traces of cemented sand. Clayey sand with traces of cemented sand is permeable but water percolates more slowly through this mixture than through the soils above it. The applicant caused a percolation test to be performed in the area proposed for the ponds. A PVC pipe six feet long and eight inches in diameter was driven into the ground to the depth proposed for the evaporation-percolation ponds and 50 gallons of water were poured down the pipe. This procedure was repeated on 14 consecutive days except that, after a few days, the pipe took only 36 gallons, which completely drained into the soil overnight. There was some rain during this 14-day period. Extrapolating from the area of the pipe's cross-section, Vincent Pickett, an engineer retained by the applicant, testified that the percolation rate of the soils was on the order of 103 gallons per square foot per day, as compared to the design assumption for the ponds of 1.83 or 1.87 gallons per square foot per day. Water percolating down through the bottoms of the evaporation- percolation ponds would travel in a southwesterly direction until it mixed with the groundwater under the applicant's property. It is unlikely that the ponds would overflow their berms even under hurricane conditions. Under wet conditions, however, the groundwater table may rise so that water crops out of the hillside higher up than normal. The proposed placement of the ponds makes such outcropping more likely, but it is impossible to quantify this enhanced likelihood in the absence of more precise information about, among other things, the configuration of the groundwater table.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That DER grant the application on the conditions specified in its notice of intent to issue the same. Respectfully submitted and entered this 17th day of December, 1980, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Carlton Building Tallahassee, Florida 32301 Telephone: 904/488-9675 FILED with the Clerk of the Division of Administrative Hearings this 17th day of December, 1980. COPIES FURNISHED: Andrew R. Reilly, Esquire Post Office Box 2039 Haines City, Florida 33844 Walter R. Mattson, Esquire 1240 East Lime Street Lakeland, Florida 33801 David M. Levin, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact Petitioner Jerry L. Seymour owns lot 220A in Pine Tree Estates, a parcel of slightly over one acre, approximately 140 feet by 330 feet, situated in Broward County, Florida. Petitioner's lot is substantially overgrown with vegetation, including swamp cabbage, myrtle, sawgrass, ferns, palmetto and cypress. The soil consists of cap rock, muck, sandy loam, humus and sand. On June 13, 1977, the day before the final hearing, standing water a few inches deep covered major portions of lot 220A, including the southern one-third and eastern edge of the lot. In short, lot 220A lies in a low, swampy area. The ground water level varies directly with rainfall. On June 13, 1977, the ground water was not quite as high as the crown of the road adjoining the lot. Rainfall in the area on June 12 or 13, 1977, if any, was not extraordinary. Historically, annual rainfall in Broward County has averaged 60 inches, but annual rainfall since 1970 has been below this average. According to petitioner's testimony, the water table has dropped a foot in the past year. After Petitioner's initial application for a permit for installation of a septic tank on lot 220A had been turned down, he filed an amended application in which he proposed to remove impervious materials from an area approximately 130 feet by 140 feet and to refill the excavation, to a height of 42 inches above the adjacent road, with soil of a kind that would facilitate drainage. In his letter denying petitioner's amended application, Mr. Hillyer, on behalf of respondent, wrote: Inasmuch as the lot in question does not comply with the above referenced code requirements we can not issue a septic tank permit at this time. However, if Mr. Seymour wishes to remove the muck in the area of the drainfield and fill the property as outlined on the survey submitted to the 42" above the crown of the road mentioned in your letter, this department will be in a position to re-evaluate this property as to whether or not a septic tank permit can be issued. Petitioner's amended application also indicated that a "Chromaglass Model CA-900 Aerobic Treatment Unit" together with a chlorinator and chlorine contact chamber would be installed, instead of a conventional septic tank; and that the installation would be in an absorption field of at least 300 square fee, and at a distance of at least 125 feet from the well petitioner proposed to drill on the lot. In addition, petitioner proposed to dredge a swale as a means of draining lot 220A. Petitioner also owns lot 220B in Pine Tree Estates, which lies immediately west of lot 220A, and shares a north-south boundary with lot 220A. The lots are about the same size and about equally swampy, although the soil in lot 220B is slightly less sandy. When petitioner's application for a permit to place a similar aerobic treatment unit on lot 220B was denied, he petitioned for an administrative hearing. The recommended order which resulted was accepted in evidence at the final hearing in this matter. That recommended order concludes: Wherefore, the Hearing Officer finds that if the planned drain field is installed on a 100' x 140' pad filled an additional 23 inches above its current pad level it will be 42 inches from the October, 1974 high water table measure, meeting the criteria established by law and I would recommend its approval. Jerry Seymour v. Broward County Health Department, State of Florida, No. 75-1059 (DOAH; October 10, 1975) No final order in Case No. 75-1059 was offered in evidence at the hearing in the present case.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent deny petitioner's application for a permit for construction of a septic tank, with leave to petitioner to refile an application if changed circumstances warrant. DONE and ENTERED this 2nd day of August, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Christopher B. Knox, Esquire Suite 302A, Medical Towers 303 Southeast 17th Street Ft. Lauderdale, Florida 33316 Mr. Howard L. Braynon, Esquire 5920 Arlington Expressway Post Office Box 241F Jacksonville, Florida 32231
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 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.
