Findings Of Fact Petitioner provides electric, gas and water utility service at various Florida locations. During the 1979 test year, its Fernandina Beach Water Division served an average of 2,500 residential customers, 523 general service customers and nine private fire line customers. In addition, it maintained 210 fire hydrants for the City of Fernandina Beach. Service The Utility is providing satisfactory water service. There were no service complaints presented at the public hearing, nor were there any citations or corrective orders outstanding. Rate Base The Utility seeks recognition of a $1,332,178 rate base. This amount includes $82,128 for an office building completed in the last month of the test year, a $7,600 chlorinator building completed after the test year (March, 1980) , and a pumphouse still under construction at an estimated completed cost of $106,000. Neither the amounts nor their completion dates are in dispute. However, the Commission seeks to utilize a 13-month average year rate base which would result in the exclusion of all the above facilities except for the office building investment during the final month of the test year. Both parties cite Citizens of Florida v. Hawkins, 356 So.2d 254 (Fla. 1978) in support of their positions. Although the Court discusses the various methods of computing a utility rate base, it concludes that unusual or extraordinary growth is a prerequisite to use of a year end rate base. The Utility did not demonstrate unusual or extraordinary growth. Rather, customer growth during the test year was only about two percent, mandating use of an average rate base. The Utility suggests that construction of the chlorinator was required by the federal government under the provisions of the Safe Drinking Water Act. If so, the Utility would be permitted to include this Investment in its rate base. 1/ However, the Utility was in compliance with the Safe Drinking Water Act prior to construction of the pumphouse and made no showing that it was required to undertake this project by government authority. Capitalization of interest on the funds used in construction of new facilities should be authorized. However, this amount will not be subject to inclusion in the rate base until the facility itself is included. The Utility plant was shown to be 100 percent used and useful in the public service. In view of this, and the adjustments discussed above, the Utility's average rate base for the test year is $1,103,201. See Schedule 1 for detail. Operating Revenues The Utility seeks a test year revenue authorization of $581,037 based on expenses of $456,184 and a 9.39 percent return on its proposed rate base. It seeks to include an expense item of $2,400 for tank maintenance, basing this amount on the five-year amortization of a projected $12,000 expenditure. Although this procedure is proper, since tank maintenance is periodically required, the $12,000 is the anticipated cost of future maintenance rather than an actual cost. Therefore, this figure must be adjusted to one-fifth of the last actual maintenance cost, or $1,105. Prior to December, 1979, when its office building was completed, the Utility rented the required space. Since the new building was not recognized for rate making purposes until the final month of the test year, it is proper to include the rent expense actually involved during the preceding 11 months. Therefore, an upward adjustment in expenses of $1,524 is required. Authorized expenses should also include $45,281 proposed by the Utility to meet known increases in the cost of purchased electrical power. The limitation on test year expenses is not the same as that on test year investment. Rather, Chapter 367, Florida Statutes, specifically provides for recognition of outside test year increases in electrical power costs. See Section 367.081(4)(b), Florida Statutes (1980). The Utility supported its proposed rate case expense of $5,100 by late filed exhibit. Neither the amount nor the proposed three-year amortization period were opposed by the Commission and are appropriately included herein. In view of the above findings and a 9.10 percent return on investment (discussed below) , the Utility is entitled to revise its rates to produce annual revenue of $536,970. See Schedule 2 for detail. Cost of Capital The parties agreed that 15 percent is an appropriate return on equity investment. This amount, when weighed against the current cost of debt, supports an overall 9.10 percent rate of return. Rate Structure The parties propose adoption of a base facility charge rate structure. This rate design includes a fixed charge to each customer served based on that customer's share of fixed operating costs. The second element of the base facility charge represents -- the variable cost of water actually used. This rate structure provides an equitable method of allocating service costs and is consistent with statutory requirements that rates be just and nondiscriminatory. See Section 307.081(2), Florida Statutes (1980). The Utility proposes to increase its fire hydrant charge from $8 to $12 monthly and to include this amount in its regular service rates to all customers rather than as a separate charge to the City of Fernandina Beach. The amount of the increase is consistent with overall revenue needs and was not opposed by the Commission. The procedure to include fire hydrant charges in customer charges was requested by the City Commission of Fernandina Beach and would not discriminate against any customer or group of customers, since all benefit from the fire protection represented by these charges.
Recommendation Based on the foregoing Findings of Fact and Conclusions A, of Law, it is RECOMMENDED that Florida Public Utilities Company be authorized to file revised rates structured on the base facility charge concept, designed to generate annual gross revenue of $536,970 based on the average number of customers served during the test year. DONE and ENTERED this 18th day of December, 1980, in Tallahassee, Leon County, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
Findings Of Fact Petitioner is the receiver for Bayside Club, Islamorada, Inc., a dissolved Florida corporation ("Bayside"). Mr. Joseph Popplewell is a general contractor and former president of Bayside. Respondent is the governmental entity authorized by Chapter 76-441, Section 14(1), Laws of Florida, to adopt impact fees for the water system in the Florida Keys, to equitably adjust the financial burden of a new pipeline, and to expand it or improve appurtenant facilities between existing customers and new water users. In 1986, Bayside sought to construct a 30 unit hotel on approximately one acre of land in Monroe County, Florida. The development project was formally classified as an expansion of an existing eight unit hotel. The existing hotel, however, had little, if any, useful life, and, in substance, the project involved the development of a new 30 unit hotel. Bayside obtained a building permit on June 4, 1985. In the same month, the building permit was challenged by an adjacent land owner. The challenge asserted that the existing hotel constituted a grandfathered nonconforming use and that the building permit improperly treated the development site as if it were located in a zoning district which permitted hotel usage and subsequent expansion. During the last half of 1985, the Monroe County Commission considered the challenge to the building permit and found that the building permit was valid. The adjacent landowner filed suit against Bayside. The circuit court upheld the validity of the building permit. The suit was finally decided on May 29, 1990, when the Third District Court of Appeal reversed the lower court's decision that the building permit was valid. Dowd v. Monroe County, 557 So.2d 63 (Fla. 3d DCA 1990). On May 29, 1990, the circuit court entered its order declaring the building permit invalid. In 1986, Bayside was advised by Respondent that unit water system development fees ("impact fees") were scheduled to increase from $1,500 to $2,000. Bayside chose to avoid paying impact fees at the increased unit rate and to achieve a savings in development costs. On or about April 18, 1986, Bayside executed an Agreement For Water Service. On or about April 29, 1986, Bayside issued a check payable to Respondent in the amount of $36,840, which included impact fees in the aggregate amount of $33,000. As provided in Florida Administrative Code Rule 48-3.002 2., the Agreement For Water Service expressly stated in paragraph 1 that "SAID SYSTEM DEVELOPMENT CHARGE SHALL NOT BE REFUNDABLE." Construction of the proposed hotel stopped sometime in 1986. A receivor was appointed for Bayside by the appropriate circuit court on June 14, 1991. Sometime in early 1992, the receiver for Bayside requested a refund of the impact fees. Respondent denied that request in a letter dated February 27, 1992, but refunded amounts paid by Respondent in excess of the impact fees. Respondent's denial of Petitioner's request for a refund did not constitute an unreasonable classification and did not establish a differential rate that was either unjust or inequitable. Respondent has consistently applied Florida Administrative Code Rule 48-3.002 2. to prohibit the refund of impact fees regardless of the classification or rate charged the person who paid the impact fee. Petitioner had adequate notice in Rule 48-3.002 2. and the Agreement For Water Service that the impact fees were nonrefundable. Respondent reasonably anticipated that the projected costs for expanding the water system would be incurred. The county commission and circuit court both upheld the validity of the building permit. If Bayside reasonably anticipated that projected costs for expanding the water system and appurtenant facilities would not be incurred due to a suit challenging the building permit, Bayside had the option of not paying the impact fees until the final conclusion of litigation. Bayside was on notice that the impact fees were nonrefundable and chose to forego its option not to pay the fees until the conclusion of the suit challenging the building permit. Bayside made a business decision to save money and time by paying the impact fees when it did. Viewed in the light of hindsight, that business decision was imprudent. Bayside did not notify Respondent that the costs of expanding the system were not reasonably anticipated until six years after Bayside chose to pay the impact fees. The nonrefundable impact fees imposed by Respondent in 1986 were just and equitable. Expansion of the water system pipeline and appurtenant facilities was reasonably required as a result of the development proposed by Bayside at the time that the impact fees were imposed. The costs attributable to such expansion were reasonably anticipated by Respondent at the time that the impact fees were imposed. The use of the impact fees was limited to meeting such reasonably anticipated costs of expansion. The impact fees imposed by Respondent in 1986 did not exceed a pro rata share of reasonably anticipated costs. Expansion of Respondent's water system was necessary irrespective of the proposed hotel. The expansion of Respondent's water system and appurtenant facilities was financed through the sale of debentures. The indebtedness incurred is made good through revenues in the form of rates, fees, and other charges. Under such circumstances, rates and fees were set with a view towards raising the money necessary to repay the loan. The impact fees did not cease to be just and equitable merely because they were set high enough to meet the water system's reasonably anticipated capital requirements.
Findings Of Fact On or about February 5, 1990, Respondent and his wife filed with the Department an application for an onsite sewage disposal system construction permit attendant to a residence which they proposed to construct on Lot 7 of Block 15 in Breezeswept Beach Estates on Ramrod Key, in Monroe County, Florida. That application sought the Department's approval for the construction of a standard septic tank. The Department advised Respondent that he could not place a standard septic tank on that property. Accordingly, on approximately March 6, 1990, Respondent amended his application, this time seeking approval for the construction of an aerobic treatment unit. Respondent obtained final installation approval for his aerobic treatment unit from the Department on December 4, 1991. By letter dated August 3, 1992, the Department advised Respondent that changes in the law made by the 1991 Legislature which became effective on July 1, 1991, established the requirement for yearly operating permits for aerobic treatment units. That letter enclosed an application form for obtaining the operating permit and gave instructions on where to mail the completed application. Respondent did not submit an application for the operating permit and pay the fee in response to that letter. On July 30, 1993, the Department sent Respondent its Notice of Intended Action advising Respondent that his failure to pay the operating permit fee and obtain the permit within 14 days of receipt of that Notice would result in the imposition of an administrative fine. Thereafter, Respondent requested this formal proceeding. Respondent has, to date, failed to obtain an operating permit for any year and has not paid the fees associated with an operating permit.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered: Requiring Respondent to pay the fee and obtain an annual operating permit for his aerobic treatment unit forthwith; Advising Respondent that his failure to comply by a date certain will result in the imposition of an administrative fine; and Fining Respondent in the amount of $155 a day commencing the day after the deadline contained in the Final Order and continuing every day thereafter until Respondent complies with the law. DONE and ENTERED this 6th day of April, 1994, at Tallahassee, Florida. LINDA M. RIGOT 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 6th day of April, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6180 Petitioner's proposed findings of fact numbered 1, 3, and 6-8 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 2 has been rejected as being irrelevant to the issues under consideration in this cause. Petitioner's proposed findings of fact numbered 4 and 5 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Respondent's proposed findings of fact numbered 1 and 4 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 2, 3, 8, and 12 have been rejected as being irrelevant to the issues under consideration in this cause. Respondent's proposed findings of fact numbered 5-7 and 9-11 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. COPIES FURNISHED: Carmen D. Frick, Esquire Department of Health and Rehabilitative Services District Legal Counsel 401 N.W. 2nd Avenue, N-1014 Miami, Florida 33128 John E. Davis 824 Seabreeze Drive Ruskin, Florida 33570 Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Kim Tucker, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact Application for consumptive use permit No. 75-00225 is a request for an existing use to be withdrawn from the Floridan Aquifer from two different wells. These two wells are located in the Hillsborough Basin and in Polk County. The property contiguous to the wells encompasses approximately 80.9 acres. The water is to be used for citrus processing and disposed of off site. The permit seeks, for average daily withdrawal, 2.98 million gallons per day for one well and 1.566 million gallons per day for the other well for a total average daily withdrawal of 3.864 million gallons per day. For maximum daily withdrawal the permit seeks 4.096 million gallons per day for one well and 2.792 million gallons per day for the other well for a total maximum daily withdrawal of 6.888 million gallons per day. The amount of water sought to be consumptively used by this application greatly exceeds the water crop of the subject lands owned by applicant. Mr. John C. Jennings and Mr. William Sunderland, owners of property adjacent to the Kraft property, appeared in their own behalf and stated that they felt that their wells were being hurt because of the large quantities of water pumped by Kraft. They did not attempt to offer expert testimony nor did they claim to be hydrologists. They did note that each had substantial problems with their wells running out of water.
Recommendation It does not appear that the district has had a reasonable opportunity to examine the objections and comments of Messers. Jennings and Sunderland with regard to the effect of the applied for consumptive use on their property. These objections were apparently raised for the first time at the hearing. As noted in paragraph 6, if the wells of Messers. Jennings and Sunderland are substantially affected in an adverse manner by applicant's use of such large quantities of water, such a use would not seem to be a reasonable, beneficial use as is required for permit unless further conditions were placed upon the permit. Therefore, it is recommended that the Southwest Florida Water Management District staff further investigate the effect of the applied for consumptive use on the wells located on the property of John C. Jennings and William Sunderland prior to the Board taking formal action on this application. ENTERED this 26th day of May, 1976, in Tallahassee, Florida. CHRIS H. BENTLEY, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Staff Attorney Southwest Florida Water Management District P. 0. Box 457 Brooksville, Florida 33512 Douglas T. Moring, Esquire Kraftco Corporation Kraftco Court Glenview, Illinois 60025
Findings Of Fact The County is a political subdivision of the State of Florida, and the Hillsborough County Sheriff's Office is a department of the County government. On or about January 18, 1989, a site evaluation for the County's application, on behalf of the Hillsborough County Sheriff's Department, for an onsite sewage disposal system (septic tank and drainfield) at Vandenberg Airport was conducted. A soil profile was prepared showing brown sand from the ground surface down 14 inches, a gray sand down another 2 inches, and a gray clay from 16 inches to 7 feet below the surface. The United States Department of Agriculture Soils Survey Book classifies the soils found at Vandenberg Airport as Manatee fine sandy loam, which is now called Chobee 10, and characterizes its permeability as "severe" with a seasonal high water table of from 0 inches at ground surface to 10 inches below the ground surface. By letter dated April 13, 1989, the Department formally denied the County's application due to the poor texture of the Chobee 10 soil and high water table found in the site evaluation, as well as the zoning of the property. This denial letter recognized the applicant's right to apply for a variance. Since the County anticipated denial of its application due to verbal indications from Departmental representatives, the County filed an application for variance with the Department on or about March 29, 1989. A Variance Review Board met and considered the County's variance application, and then recommended approval. However, the variance application was denied by the Department on June 1, 1989, due to the nature of the activities to be conducted on the site, as well as the severe soil conditions on site. The denial of the County's variance request effectively denied its application for this permit. The County has timely sought this review of the Department's denial of its application for a permit for a septic tank and drainfield system at Vandenberg Airport for use by the Sheriff's Department. The parties stipulated that the County's application included the redesign plans and report of its consulting engineers. They further stipulated that the location for which this permit is sought is imperative to the duties of the Sheriff's Department, and there is no alternative to this location without greatly increasing the response time of the Sheriff's Department to emergencies and other calls for service. The Hillsborough County Sheriff's Department has been operating its aviation unit out of a hangar at Vandenberg Airport for several years, and in March, 1989, the County entered into a ten year lease with the Hillsborough County Aviation Authority for approximately 103,126 square feet of land (2.37 acres) located at the Vandenberg Airport for a new hangar for storage and maintenance of aircraft used in conjunction with the services provided by the Sheriff's aviation unit. The site was formerly used for three residences which were served by septic tanks. This lease specifically provides that the County is responsible for obtaining all necessary permits and for securing necessary utility services for the use of this Sheriff's hangar. Thus, the Aviation Authority is not responsible for providing sewage treatment facilities for this site. The Hillsborough County Aviation Authority is not a unit within Hillsborough County government, but is an independent entity established by Special Act. The County has no control or authority over the Aviation Authority's creation of development plans, but the County may approve or disapprove these plans after they have been created by the Aviation Authority and submitted to the County. The Authority's development plans for expansion of Vandenberg Airport provide for runway expansion, taxiways, aprons and parking for aircraft and hangar expansion. As part of this expansion, the Aviation Authority has removed 51 individual septic tanks from homes located on lands which have been acquired, and which now comprise part of Vandenberg Airport. There is no record of any problems with the three residential septic tanks formerly located on this site for 25 to 30 years. The Aviation Authority's plans do not include construction of a sewage treatment plant or providing sewage treatment services in any manner other than with septic tanks, the permits for which must be obtained by its lessees. No centralized wastewater service is available to the proposed Sheriff's hangar at the Vandenberg Airport, and the closest sewer main will be more than 10,000 feet away upon its completion in 1990. The County's five year capital improvement plan does not include extension of this sewer line to the Airport. The location for the Sheriff's hangar is currently zoned SPI-AP-V, which is a special airport district zoning classification created in September, 1989, for Vandenberg Airport. In this zoning district, manufacturing, processing and assembly activities are prohibited. Retail activities are also prohibited, as well as hotels, motels, repair services, physician and dental offices, bus and train terminals, lumberyards, warehouses, publishing and printing, and rental and leasing activities. This district is to be used for public use facilities, wastewater treatment plants and lift stations, aircraft landing fields, airport and airport related activities. "Airport" activities are defined to include fuel storage and transmission facilities, hangars, aircraft service, repair and maintenance facilities. "Airport related" activities are defined as: Uses which are dependent upon proximity to the airport for effective performance, or which provide services to the airport..., including but not limited to airport maintenance facilities and associated administrative offices; sales of new and used aircraft and aircraft parts; sales of aircraft fuels, lubricants, and other aircraft supplies; ... and other airport-related uses compatible with the operation of airports for public and private use. Based upon five soil borings taken at the boundaries of, as well as within, the proposed hangar site, Darrell Hanecki, a geotechnical engineer who was accepted as an expert in engineering, found that the groundwater table was 3 to 4 feet below the existing ground surface in October and November, 1988. The seasonal high groundwater table was estimated to be approximately 12 inches above the existing ground water table at that time, but significant fluctuations in the groundwater level were anticipated due to seasonal variations in rainfall, runoff, and other site specific factors. The borings upon which Hanecki's findings are based were performed in general compliance with accepted procedures for standard field penetration tests. Hanecki concluded that the soil conditions are suitable for the proposed hangar if constructed on a shallow footing foundation with special site preparations. William Fernandez, who was accepted as an expert in civil engineering, developed a redesign of the County's septic tank and drainfield in support of its variance request in order to address concerns expressed by the Department's representatives concerning soil conditions on site. It is proposed that the septic tank and drainfield site will be excavated to a depth of 6 feet, and all clays will be removed. The site will then be backfilled with clean materials in order to allow the drainfield to percolate through these clean materials from three mounded drains which will be located in a two foot high mound constructed above the original grade. A pump will be used to lift the effluent from the tank to the drainfield. The septic tank will have a 750 gallon capacity. It is projected that 8 people will use this septic tank each day, and that each person will cause 25 gallons of sewage per day to be deposited in the system, or a total of 160 gallons of sewage per day. Only domestic wastes from the hangar restrooms will go into the system. Oils, greases and other substances used in aircraft maintenance and repair will be separated and carried to a retention pond through a system of trenches. After hearing the testimony of the County's expert witnesses about the surface water management system to be constructed on site, the Department's environmental specialist, Gary Schneider, testified that he was no longer as concerned about the possibility of oils, greases and other hazardous materials getting into the septic tank system. The County has also applied to the Southwest Florida Water Management District for a surface water management permit, and must receive that permit for this proposed hangar at Vandenberg Airport. The Department seeks to rebut the expert testimony offered by the county primarily with the testimony of Robert Blanco, supervisor of the county health department's septic tank permit program, who was neither tendered nor accepted as an expert, as well as a letter from Richard Ford, resource soil scientist with the Soil Conservation Service, dated September 18, 1989, who took one soil boring and concluded that the soil identified was poorly drained to very poorly drained Chobee loamy sand. Ford was not present to testify. Blanco agreed with Ford's conclusion, expressed in his letter, that the seasonal high water table on this site will come to the surface, or within 10 inches of the surface, for 2 to 6 months each year, causing ponding to occur. Based upon the demeanor and qualifications of the witnesses who testified at hearing, it is specifically found that the testimony offered in support of the County's application, and in particular the expert testimony of Hanecki and Fernandez, is more credible and is given greater weight than the testimony offered on behalf of the Department, particularly the testimony of Blanco. Blanco was not qualified or tendered as an expert in any field, and therefore, he was only competent to offer fact testimony. He speculated, without any supporting evidence in the record, that the septic tanks formerly on this site were not built to Code specifications and probably did not work, although there is no evidence of any complaints about these septic tanks during the 25 to 30 years they were in operation. Blanco also insisted that standardized texts describing soil types over large geographic areas are more reliable than actual soil borings on site, although he could not render an expert opinion in this regard. The letter from Ford offered by the Department was not supported by other competent, substantial, credible evidence, and in any event was based upon only one soil boring as opposed to five borings conducted by Hanecki in accordance with generally accepted practices. Therefore, it is found that the groundwater table on this site is 3 to 4 feet below the existing ground surface, and the seasonal high groundwater table is approximately 12 inches above the existing groundwater table, although it does fluctuate. It was undisputed at hearing that the soils on site are Chobee 10, which is poorly to very poorly drained soil, but the County's redesign of the proposed septic tank and drainfield reasonably and adequately accounts for, and accommodates, this condition by excavating to a depth of 6 feet and backfilling with clean materials, and by placing three drains in a mounded drainfield built two feet above the existing ground level. This redesign complies with the requirements and provisions of Chapter 10D-6, Florida Administrative Code.
Recommendation Based upon the foregoing, it is recommended that the Department enter a Final Order granting the application of Hillsborough County for a permit for an onsite sewage disposal system (septic tank and drainfield) for the Sheriff's Department hangar at Vandenberg Airport. DONE AND ENTERED this 24th day of October, 1989 in Tallahassee, Florida. DONALD D. CONN 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 24th day of October, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-3776 Rulings on the County's Proposed Findings of Fact: 1. Adopted in Finding 1. 2-7. Adopted in Findings 6, 7. Adopted in Finding 8. Adopted in Finding 7. Adopted in Finding 10. Adopted in Findings 9, 12. 12-13. Adopted in Findings 2, 3. Adopted in Findings 10, 12. Adopted in Findings 3, 5, 10. Adopted in Findings 3, 4. Rulings on the Department's Proposed Findings of Fact: Adopted in Finding 6. Adopted in Finding 8. 3-4. Adopted in Finding 2. Adopted in Finding 11; Rejected in Finding 12. Rejected in Finding 12 as irrelevant and immaterial since the classification of the soils on site was not disputed at hearing. Adopted in Finding 5. Adopted and Rejected in part in Finding 12. COPIES FURNISHED: Michael J. Morrison, Esquire Assistant County Attorney 725 East Kennedy Boulevard Tampa, Florida 33602 Raymond R. Deckert, Esquire W. T. Edwards Facility 4000 West Buffalo Avenue Room 500 Tampa, Florida 33614 John Miller, General Counsel 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power, Agency Clerk 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory Coler, Secretary 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue At issue in this proceeding is whether a citation and imposition of a $1,500.00 fine for installing a septic tank without a permit was properly imposed on Respondent, Paul Ware, a/k/a Paul Montgomery-Ware, by Petitioner, the Department of Health, Polk County Health Department (the "Department").
Findings Of Fact Respondent is the owner of three contiguous lots in Polk County (Bevington Manor, PB 20 PG 47, Lots 100 through 102), purchased via tax deed recorded on October 21, 2003. Respondent's lots are surrounded by property owned by Irma Walker, whose son, William Walker, testified at the hearing. Respondent apparently intended to develop his lots as a commercial enterprise and had erected a Quonset-type structure on the property. From his mother's adjoining property, Mr. Walker regularly observed Respondent's activities. Mr. Walker testified that Respondent was using his property to operate a motorcycle repair shop. On June 4, 2004, Mr. Walker observed Respondent using a backhoe on his property. Mr. Walker testified that Respondent was installing a septic tank. Mr. Walker told his mother, who then initiated inquiries as to whether Respondent had a permit to install a septic tank. When her inquiries met with a negative response, Ms. Walker called in a complaint to the Department. On June 7, 2004, the Department sent environmental specialist Susan Patlyek to the site. Ms. Patlyek observed infiltrator chambers on the site. Infiltrator chambers are used only in connection with OSTD systems. Ms. Patlyek also observed a recently excavated area and a rented backhoe, commonly used to dig out areas for septic tank installation. It was obvious to Ms. Patlyek that a septic tank and drainfield had been installed on Respondent's property, though no permit had been issued by the Department allowing installation of an OSTD system. Installation of an OSTD system without a permit constitutes a sanitary nuisance. The Department sent a letter to Respondent dated June 8, 2004, advising him of the need to abate the nuisance by obtaining a permit. With the letter, the Department enclosed a blank application form that Respondent could have completed and returned to the Department's permitting office. Respondent replied by contending that the Department lacked jurisdiction over activities on his land and suggested that the Department initiate court action. Respondent also returned the application form in its original blank form. The Department then issued Respondent a citation for violations of Subsection 381.0065(4), Florida Statutes (2003), and Florida Administrative Code Rule 64E-6.003(1), constructing an OSTD system without a permit; and for a violation of Subsection 386.041(1)(b), Florida Statutes (2003), maintaining a sanitary nuisance. The citation provides for a $1,500.00 fine. The Department's citation also informed Respondent of his right to a hearing pursuant to Chapter 120, Florida Statutes (2003). Respondent contends that the relegation of this matter to an administrative forum is unconstitutional.
Recommendation RECOMMENDED that Petitioner, the Department of Health, Polk County Health Department, enter a final order imposing a $500.00 fine for the violations described in the above Findings of Fact and Conclusions of Law. DONE AND ENTERED this 30th day of November, 2004, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 30th day of November, 2004. COPIES FURNISHED: Roland Reis, Esquire Polk County Health Department 1290 Golfview Avenue, Fourth Floor Bartow, Florida 33830-6740 Paul Ware 6557 Crescent Lake Drive Lakeland, Florida 33813 R.S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Quincy Page, Acting General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue Whether Petitioner’s application for a variance to permit an onsite treatment and disposal system should be approved.
Findings Of Fact The lot of land for which the Bank seeks a variance for an onsite sewage treatment and disposal system is located at 341 Compass Lake Drive in Jackson County, Florida. The lot is approximately 40 feet wide and 300 feet deep, with approximately 40 feet of frontage on Compass Lake. Prior to its severance in 2010, the lot was part of a larger parcel of land with an address of 343 Compass Drive in Jackson County. The larger parcel was owned by Charles Paulk and had substantial improvements consisting of a house, boathouse, and dock. In 2004, Mr. Paulk borrowed money from the Bank and gave the Bank a mortgage lien on the entire larger parcel to secure the loan. At some point, a survey was prepared which subdivided the larger parcel into two lots -- the first containing the substantial improvements, and the other consisting of the approximately 40-foot by 300-foot lot at issue, which is .28 acres in size, with no improvements. There is no indication that the survey was ever recorded in the public records. Later, in 2010, Mr. Paulk decided to sell the lot with the substantial improvements for $330,000. Because the Bank had a lien on the entire larger parcel, Mr. Paulk requested that the Bank release its lien on the lot with the substantial improvements. The Bank agreed to release its lien on the lot with substantial improvements and, after receiving what the Bank felt was a “sufficient pay-down” on the loan, shifted its lien to the smaller, unimproved lot that is at issue in this case. The sale and release of lien transaction “substantially reduced the loan versus the collateral value” that the Bank previously had. According to the Bank’s Senior Vice President, James Goodson, after the sale transaction, there was “not a lot of money left on the loan ” Mr. Goodson testified that, at the time that the Bank agreed to release its lien on the substantially improved lot and shift its lien to the remaining unimproved lot, it was unaware that a variance would be required for an onsite sewage treatment and disposal system (septic tank) on the unimproved lot. The facts as outlined above, however, demonstrate that the Bank was an active participant and beneficiary of the transaction that ultimately resulted in the creation of the two lots, one of which was the approximately 40-foot by 300-foot unimproved lot at issue in this case. In 2012, Mr. Paulk experienced financial problems and was having difficulty paying back the loan to the Bank secured by the unimproved lot. Because it was easier than foreclosure, the Bank agreed to take a deed to the unimproved lot in lieu of foreclosure.1/ At the time of the Bank’s release of lien in 2010, as well as at the time of the deed in lieu of foreclosure, the 40- foot by 300-foot lot size of the unimproved lot was too small to meet the statutory requirements for a septic permit. Mr. Goodson testified that, at the time that the Bank accepted the deed in lieu of foreclosure, the Bank was aware that the lot was too small and would need a variance for a septic tank. He did not explain, however, why the Bank had earlier been unaware of the need for a variance when it agreed to release its lien on the substantially improved lot in 2010. After the Bank acquired title to the unimproved lot, a third party offered to purchase it on the condition that the Bank could obtain a permit. The Bank went to Jackson County to request a permit, knowing that its request would be denied because the lot size was insufficient for a septic tank without a variance. Nevertheless, the Bank believed that it would qualify for a variance on hardship grounds because it did not “intentionally” create the hardship. The Bank commenced the permitting process by submitting an application with the Jackson County Health Department on October 4, 2012. The County denied the application on the grounds that the lot was deficient in width and total area. Next, the Bank submitted a request to the Department for a variance. The request was considered by the Department’s Variance Review and Advisory Committee (Committee) on December 6, 2012. The Committee has only recommending authority to the State Health Officer. In a four to three vote, the Committee recommended approval of a variance. The members voting against a recommendation for approval were representatives of the State Health Office, the Department of Environmental Protection, and the County Health Department. Eight objections from adjacent property owners were provided to the Committee’s review and consideration. After considering the facts, including the decision of the County Health Department, objections filed by adjacent property owners, actions taken by the Bank, and the recommendations of all the members of the Committee, Gerald Briggs, Bureau Chief for Onsite Sewage Programs for the Department of Health, made the Department’s preliminary decision that the Bank’s variance request should be denied, concluding, among other things, that “[a]ny perceived hardship that [the Bank] might experience as a result of the obligation to meet established standards comes about as a direct result of your own proposed action.” Likewise, considering the facts and evidence as presented in this case, the undersigned finds, as a matter of fact, that the Bank intentionally participated in and benefitted from the transaction that resulted in the hardship posed by the small lot size that it now owns and for which it seeks a variance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a Final Order denying SunSouth Bank’s application for a variance. DONE AND ENTERED this 21st day of March, 2014, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 21st day of March, 2014.
The Issue The issue for consideration in this case is whether the Respondent, Hi Hat Cattle and Grove, should be issued water use permit 204387.03, to withdraw groundwater from the wells on its property, and if so, in what amount and under what conditions.
Findings Of Fact At all times pertinent to the issues herein, the Respondent, District, was the state agency responsible for the permitting of consumptive water use within its area of geographical jurisdiction. The Respondent, Hi Hat, is a family owned farming and ranching operation in eastern Sarasota County with water wells on its property. The Intervenor, City of Sarasota, is a municipality in Sarasota County which operates wells in the general area of those operated by Hi Hat, and which has an agreement with Hi Hat for the latter's use of treated wastewater pumped from the city's treatment plant to Hi Hat Ranch. The Petitioner, Wyatt S. Bishop, Jr., is a property owner and resident of Sarasota County whose property is located near the Hi Hat Ranch, and whose potable water is drawn from a well on his property which utilizes both the surficial and intermediate aquifers which are penetrated by the wells on Hi Hat Ranch. Hi Hat Ranch consists of 11,000 acres owned by Hi Hat Cattle and Grove, the family owned business which operates it, and an additional 3,227 acres leased from the City of Sarasota. Agricultural operations, including citrus farming, truck farming, sod farming, and grazing have been conducted on the ranch since the mid 1940's. In February, 1990, Hi Hat applied to the District for a permit to withdraw and use water from some 14 wells located on its property. It requested an annual average of 6,267,000 gallons per day, (gpd), and a peak monthly rate of 32, 668,000 gpd. Upon receipt by the District, the application was assigned a number, (204387.03), and was submitted for evaluation by the District staff for conformity with applicable District rules and policies. When the staff evaluation was completed, the District issued a staff report and proposed staff agency action in which it indicated its intention to issue a permit authorizing water to be drawn from the wells at a rate of 6,570,000 gpd, average annual, a peak monthly rate of 14,300,000 gpd, and a maximum daily rate of 5,210,000 gpd. In conducting its evaluation, the District staff relied upon the District's Basis of Review For Water Use Permit Applications which contains within it the provision for use of a "water use model" in assessing the need and appropriateness of water withdrawal amounts. This model, known as the Blaney- Criddle Model considers numerous factors in the evaluation, including rainfall, soil characteristics, irrigation methods used, and proposed crop types, all in an effort to determine a reasonable estimate of the applicant's supplemental water needs. Hi Hat's application was evaluated primarily by Marie Jackson, a Hydrologist III employed by the District, and an expert in hydrology, who has, over the years, reviewed between 350 and 400 permit applications, of which approximately 90 percent have been for agriculture. She is, therefore, quite familiar with the specifics of agricultural water use needs. Her evaluation of Hi Hat's application was done in the same manner as the others she has done and utilized the same tests, measurements and factors for consideration in arriving at her conclusion. In its application, a renewal with modification sought to increase average annual quantities due to a change in crop plans, Hi Hat indicated that its criteria for water use was based on certain agricultural uses and application rates. These included: low volume under tree spray irrigation of 778 acres of citrus at an application rate of 17.2 inches/year plus one inch/year for frost and freeze protection. open ditch irrigation of 135 acres of sod at an application rate of 30 inches/year. open ditch irrigation of 1,367 acres of improved pasture at an average application rate of 26.6 inches/year. overhead spray irrigation of 1,200 acres of improved pasture at an application rate of 20.3 inches/year. open ditch irrigation of 110 acres of spring peppers at an application rate of 30.0 inches/crop, and open ditch irrigation of 110 acres of fall peppers at an application rate of 45.2 inches/crop. Applicant also stipulated that the peak monthly quantities that it requested would be utilized for pasture, sod and citrus irrigation during the month of May. The proposed maximum quantities were for frost and freeze protection of citrus only. In January, 1989, Hi Hat entered into a contract with the City of Sarasota under which the City was obligated to deliver reclaimed water from its wastewater treatment plant to a "header" located on the ranch which thereafter distributes the water through pipes to "turnouts" located at various high points on the property. From these, the water is then discharged into a system of ridges and furrows for distribution of the water across the needed area. The reclaimed water is used to irrigate approximately 5,403 acres of ranchland. The Contract provides for minimum and maximum amounts of water to be delivered as well as for water quality standards which must be met. In periods of adequate rainfall, when irrigation is not required, any treated wastewater which is not needed is stored in a 185 million gallon holding pond on City property located adjacent to the ranch. When needed, water can be fed into the wastewater distribution system described above from the holding pond. This reclaimed water, whether from the pond or direct from the header, can also be utilized to irrigate citrus crops, but this requires a filter system which has not yet been able to operate properly. Therefore, no reclaimed water has yet to be utilized for citrus irrigation on the ranch. At an average annual flow of 6.2 million gallons per day, the pond has the capacity to hold enough treated water for almost 30 days. Not all wells on Hi Hat Ranch are active wells. Several of the wells are classified as standby wells which are intended to be used only to back up the reclaimed water delivery system and are located, normally, beside the "turnouts." In the event the reclaimed water is not available from the city, the standby wells can be utilized to provide water to the ridge and furrow system used to irrigate pasture land. The standby wells are numbers 1, 6, 7, 11, 13, 14, and 15. Well number 5, also identified as a standby well in the staff report and in the draft permit was mistakenly so identified. The draft permit contains several special conditions which impact on the drawing of water under the terms of the permit. Significant among these is Special Condition 33 which prohibits the withdrawal of water from any of the standby wells unless the reclaimed water supply from the city is interrupted. Special Condition 27 requires the installation of a flow meter on any standby well that becomes active as a result of permanent discontinuance of the reclaimed water supply. With regard to flow meters, Special Condition 22 requires flow meters on all of Hi Hat's wells. Ms. Jackson, however, indicated this was in error and has recommended that the standby wells be deleted from that Special Condition. When that is done, only those wells actively producing water on a regular basis would require the installation of flow meters. In its analysis of the application for permit, the District staff considered several factors pertinent to the impact the well would have on the water supply in the area and its effect on other users. These factors include hydrologic impacts, well condition, the history of water use at the ranch, the reliability of the reclaimed water system and its ability to provide a uniform source, and the city's water reuse policy. Addressing each individually, and starting with the hydrologic impact of the withdrawal of the requested amounts, the District considered the nature of the existing wells and how they are constructed and maintained. The District assumed, because the data regarding the construction of the existing wells was incomplete and insufficient to properly disclose the status of casing on each well, that they were shallow cased. As a result, the calculations incorporating this assumption indicate a situation that would occur in its most aggravated form. The parties agreed that Hi Hat's wells are shallow cased and probably go no deeper than 90 feet. To determine, as much as possible, the projected drawdowns in the surficial and intermediate aquifers that might be expected if Hi Hat withdrew the amounts of water proposed, the District utilized the "MODFLOW" computer model which factors in simultaneous peak withdrawals from all 14 of the wells along with a 90 day no rainfall drought condition. This, too, contributes to a worst case scenario, and the resultant figures are considered to be conservative estimates of the hydrologic impact of the water withdrawal. Notwithstanding, the application of this computer model resulted in the indication that, as to the surficial aquifer, the drawdown at Mr. Bishop's property located approximately one half mile from the ranch border, would be no more than .055 feet. Since normal fluctuations in the surficial aquifer during the course of the year can be as much as 6 feet, the projected drawdown as a result of Hi Hat's withdrawals was considered insignificant. Applying the same assumptions and utilizing the same computer model as it relates to the intermediate aquifer resulted in an indication of a drawdown of no more than 2.3 feet at Mr. Bishop's property. Since annual fluctuation in the intermediate aquifer can range from 15 to 20 feet normally, the District considers that any reduction of less than five feet in the intermediate aquifer is insignificant. The permit held by Hi hat currently allows for the withdrawal of more water than would be withdrawn under the proposed permit as conditioned and is consistent with the proposed reduction in allowable withdrawals. Considering that factor, as well as the prohibition against withdrawals from standby wells as long as reclaimed water is available, the actual impact of the water withdrawals consistent with the proposed permit would be substantially less than the computed prediction which includes production from all wells. Drawdown contours are defined across the entire effected area. One of the levels is a 4 foot contour, and when a computer simulation indicates that the 4 foot contour includes a withdrawal previously or otherwise permitted, the District will generally conduct a cumulative impact analysis. In this case, however, since there was only one golf course well within the area circumscribed by the 4 foot contour line, and since this withdrawal was too small to have effected an evaluation, it was not done. The condition of the wells on the Hi Hat Ranch has some bearing on whether or not the application for additional withdrawal of water should be granted. These wells are almost 30 years old, having been drilled in the 1960's. As a result, there is little information available regarding their construction detail. This is not necessarily unusual for agricultural wells, and there is evidence that there are many similar wells in use within the District. The reason for this is that at the time the wells were drilled, information regarding their depth, casing and other matters were not required to be kept or reported. However, there is no indication the wells are in any way violative of well construction criteria and their use has been authorized continuously since 1977. When he prepared Hi Hat's application, Mr. Turner included much the same information regarding the wells as pertains as to depth and diameter which he had previously submitted in earlier applications and which had been accepted. In each case, casing depths had been reported as unknown. Notwithstanding the information contained in some old well logs relative to only a few of Hi Hat's wells, this information is in no way definitive and it is difficult to describe anything specific with the majority of these wells. Nonetheless, as already found, it is stipulated that most are approximately 90 feet deep. It is reasonable to assume that the existing wells, however, are cased only to a shallow depth, and that in many cases, the existing casings have corroded away, either totally or in part. This can cause an intermixing of water from the separate aquifers, but whether this is in fact happening depends upon factors specific to that particular well. Petitioner did not present any evidence to show that as a result of the condition of Hi Hat's wells, any degradation is occurring in the more potable, surficial aquifer as a result of intermixing with water from the intermediate aquifer on or around the Hi Hat Ranch. In Ms. Jackson's opinion, and there appears to be no evidence to contradict it, the amount of drawdown which would occur as a result of maximum pumping at Hi Hat Ranch would not be sufficient to cause poorer quality water from the Floridan aquifer to percolate upward (upcone) into the better quality water of the two upper aquifers even during drought conditions. By the same token, there is no evidence that drawdown would encourage or permit salt water intrusion. Petitioner attempted to show by the records kept on the various Hi Hat wells that many of them have been abandoned and are no longer operative and should not be allowed to fall within the parameters of this permit. He testified clearly that over the years, the level of water in his potable water well has lowered and presumed that this was the result of increased water usage by other entities which draw from the aquifer into which his well is sunk. Water level, however, depends upon numerous factors, of which usage is only one. Others include recharging of the aquifer and the amount of rainfall and other recharge sources not only in the immediate area but across the large area which feeds the aquifer. Mr. Bishop did not present any evidence showing a causal connection between the lowering of the water in his well, or the degradation in water quality he claims to have experienced, and either the drawdown caused by Hi Hat's operation or by aquifer intermixing. He indicated, and it is not disputed, that within the past year, he has had to take measures to improve the water quality in his potable well, but, again, he has not presented any evidence to show this was caused by Hi Hat's ground water withdrawals. In its long range planning, the District intends to implement a program to rehabilitate old wells, and when that program is implemented, almost every agricultural well within the District may require recasing or redrilling. This program will not be implemented for several years, however. In an effort, however, to insure that all reasonable precautions are taken to see that approval of any petition for withdrawal does not have an unacceptable adverse impact on the water needs of the surrounding community, in its analysis of this application, and in all cases, the District makes certain assumptions when adequate empirical data is not available. In this case, pertaining to the unavailability of information regarding Hi Hat's wells, the District assumed that all wells were shallow cased, and this placed the application in the worst possible light. Shallow cased wells allow more upconing and aquifer intermixing. Nonetheless, the amount of water permitted to Hi Hat, even if not used, could impact on Mr. Bishop and other adjoining owner's use of additional water as a result of a possible change to their permitted quantities. However, to compensate for this, the District has also included a special condition, (#26), which requires Hi Hat to log all 14 of its wells within the term of the permit, (7 years), which will require at least 2 wells be done each year. The cost of that action will be between $800 and $2500 per well. Another condition, (#31), requires Hi Hat to look into any complaint from adjacent property owners regarding adverse impacts due to water withdrawal, to report the results of its inquiry to the District, and to mitigate, as much as possible, all adverse impacts due to its withdrawal. Mr. Bishop claimed, and introduced evidence purporting to demonstrate, that many of the wells on the Hi Hat Ranch, which are covered by the permit applied for here, are no longer in use and have been abandoned. In response, Mr. Turner, who has been actively engaged in the ranch's operations for at least the past four years, indicates from his personal knowledge, that all 14 wells included in the permit applied for have been operated within the past two years, and all are capable of producing water. It is so found. Not all wells, however, have been operated at all times. Crop rotation and a varying need for groundwater has resulted in some wells not being used at some times. This is, of course, commonplace in agriculture and to be expected as a result of crop planning programs. Admittedly, an accurate figure for the amount of water which has been withdrawn from the 14 wells cannot be established because these wells do not have, and were not required to have, flow meters. Two of the wells were fitted with hour meters in January, 1989, but because the capacity of the pumps on those wells is variable, a precise estimate of volume pumped cannot be determined. The meters measured only the number of hours the pumps were in operation and not the amount of water passed through the pumps. Evidence was presented, however, to show that wells have been utilized at the ranch since the 1960's, and in 1977, some 14 years ago, following District implementation of a consumptive water use permit program, the ranch first applied for water withdrawal permits. These permits have been renewed as required and all water usage since the implementation of the program has been permitted. Turning to the reclaimed water supply, the delivery system, incorporating a program to pump reclaimed water from the treatment plant all the way back out to the ranch site, is subject to material failure and operator error, and either one can occur at any number of places along the system route. Each could result in interruption of the delivery of the reclaimed water to the ranch. The system is far more complex than would be the use of on-site wells for delivery of ground water. One two week shutdown in the system was occasioned by a major pipe failure as a result of pressure building up in the pipes. Were it not for the fact that a contractor was already at the ranch with replacement parts on hand to effect expeditious repair of the system, the shutdown could have lasted considerably longer than it did. This is not the only interruption, however. Several main line leaks and valve problems have caused the system to be shut down on several occasions for short periods of time. The filter system required for the water destined for the citrus area is problematical, and so far this area of the ranch has not received any reclaimed water in the 10 months the system has been in operation. Mr. Bishop argues that the wet weather holding pond is a solution to the reliability problems with the pipe line, but the pond has had problems of its own. Sand in the water, which comes from the holding pond, has been the primary difficulty in the filter system for the citrus area, and algae growth in that pond has the potential to create other filter problems. Delivery of the water from the pond is not accomplished by a gravity system, but instead, requires the use of pumps powered by an electric motor. In the event of a power failure, this source would be unavailable. Discounting all of the above, however, and assuming, arguendo, that all systems were in top operating condition, the fact remains that the delivery system from the pond to the distribution system is not adequate to supply the amount of water that would be necessary to have an effective freeze protection program. In any case, the reclaimed water supply is not the panacea for all water shortage problems experienced at Hi Hat Ranch. In the first place, the quality of the reclaimed water is generally lower than that of the groundwater which would come from wells on the ranch. Also, the City's treatment process does not remove from the water all the pollutants that are of concern to the farm operators. For one thing, total dissolved solids in the reclaimed water are considerably higher than in the ground water, and high dissolved solid levels can be harmful to citrus crops. In fact, the Institute of Food and Agricultural Sciences recommends that citrus irrigation water not exceed total dissolved solid ranges of from 1000 to 1500 milligrams per liter, (mpl). Testing done on the reclaimed water delivered to Hi Hat Ranch showed it averaged between 1200 and 1500 mpl. Though within recommended parameters, it was toward the high end. Further, reclaimed water is not totally interchangeable with ground water for all agricultural purposes. It cannot, by law, be applied to certain types of ground crops such as melons, nor can it be used for overhead citrus irrigation. There is also a restriction on the use of reclaimed water for pastures on which dairy cattle will be grazed. This all results in a restriction on the options available to the farmer who chooses to use reclaimed water in his irrigation plan. As a result, many farmers try not to use reclaimed water if they have access to adequate amounts of groundwater from on- site wells. Notwithstanding all the above, the parties agree that the use of reclaimed water for irrigation purposed is in the public interest. The District encourages it but nonetheless concedes that even with the availability of reclaimed water, a farmer should have access to wells on his property, in a standby capacity, as an alternative source of water to support his farming activities. Not only that, the agreement between the City and Hi Hat provides for Hi Hat to maintain its water use permit even while receiving reclaimed water from the City. Hi Hat is not the only farm operation with whom the City has negotiated in a effort to expand its wastewater distribution program. It has found in those negotiations, that most farm producers are not willing to rely totally on reclaimed water for all their irrigation needs, and it has concluded that were it mandatory that a farmer give up his on-site ground water withdrawals in order to utilize reclaimed water for a part of his needs, most would be reluctant to use it at all. This would seriously interfere with the City's ability to dispose of its surplus reclaimed water consistent with its policy. Even though Hi Hat's property lies within the Eastern Tampa Bay Water Use Cautionary Area, the rule pertaining thereto is inapplicable to Hi Hat because Hi Hat filed its application for permit, which was deemed complete, prior to the adoption of the rule. Nonetheless, water use officials agree that the proposed permit is consistent with the rule emphasis on the use and reuse of reclaimed water, and the District does not object to backup wells being permitted as supportive of the District's desire to keep ground water within the ground.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Hi Hat Cattle and Grove be issued water use permit No. 204387.03, within the limits of the authorized quantities as indicated in the intent to issue, subject to conditions contained therein; except that the permit be amended to show well No. 5 as a non-standby well, and to delete standby wells from the terms and requirements of Special Condition 22. RECOMMENDED this 17th day of May, 1991, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 17th day of May, 1991. APPENDIX TO RECOMMENDED ORDER 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: Accepted Accepted and incorporated herein. Accepted and incorporated herein. - 6. Accepted and incorporated herein. 7. - 11. Accepted. - 15. Accepted and incorporated herein. Accepted. Accepted. & 19. Accepted and incorporated herein. - 22. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. - 28. Accepted and incorporated herein. Accepted and incorporated herein. Rejected. She testified that Condition 28 of the permit provides this. Accepted. Accepted. Accepted and incorporated herein. Accepted. & 36. Accepted. Rejected as not supported by the evidence except that the method permitted was the method being used. - 40. Accepted. Ms. Jackson indicated she "assumed" some wells were drilled into the Florida aquifer. Rejected. Accepted as qualified by the comment, "depending on the respective potentiometric heads." - 47. Accepted. Accepted but incomplete. This is because they did not feel it was necessary under the circumstances. - 51. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted and incorporated herein. Accepted. Redundant. - 61. Accepted. - 66. Accepted and incorporated herein. Accepted. More a restatement of testimony than a Finding of Fact Accepted and incorporated herein. & 71. Accepted and incorporated herein. - 74. Accepted. Accepted. First sentence accepted. Second portion rejected since cited case involves active wells versus standby, as here. The comparison made is accepted. The conclusion drawn as to validity is rejected. & 79. Accepted. FOR THE RESPONDENTS AND INTERVENOR: & 2. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. & 6. Accepted and incorporated herein. 7. - 10. Accepted and incorporated herein. 11. - 13. Accepted and incorporated herein. - 17. Accepted and incorporated herein. Accepted. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. & 23. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Not a Finding of Fact but a comment on the evidence. 27. Accepted. 28. & 29. Accepted and incorporated herein. 30. - 33. Accepted and incorporated herein. 34. - 37. Accepted and incorporated herein. 38. Accepted. 39. Accepted. 40. - 42. Accepted and incorporated herein. Accepted and incorporated herein, & 45. Accepted. 46. & 47. Accepted and incorporated herein. COPIES FURNISHED: Wyatt S. Bishop 5153 Tucumcari Trail Sarasota, Florida 34241 Bram D.E. Canter, Esquire Haben, Culpepper, Dunbar & French, P.A. 306 N. Monroe Street Tallahassee, Florida 32301 Edward B. Helvenston, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Barbara B. Levin, Esquire de la Parte & Gilbert 705 East Kennedy Blvd. Tampa, Florida 33602 Peter G. Hubbell Executive Director SWFWMD 2379 Broad Street Brooksville, Florida 34609-6899
Findings Of Fact Trans/Circuits is a manufacturer of electronic printed circuit boards located at 210 Newman Way, Lake Park, Florida. Trans/Circuits' manufacturing operation involves the deposition of copper on plastic boards and the use of a lead or tin etch resist in order to create an electrically conducting circuit board. In the course of the manufacturing process, rinsewaters are used which become contaminated with copper and lead from the manufacturing process. These rinsewaters undergo chemical treatment to remove the metals and other contaminants, and are then discharged into an unlined percolation pond located behind Trans/Circuits' facility. About 36,000 gallons of effluent are discharged into the pond every day. The percolation pond discharges into ground water underlying Trans/Circuits' facility which groundwaters contain less than 3000 milligrams per liter (mg/l) of total dissolved solids. Trans/Circuits uses a Havviland brand wastewater treatment system. The system at present does not provide treatment sufficient to remove copper, fluoride, and lead from the wastewater effluent in compliance with the DER class G-II groundwater standards for these metals, i.e., 1.0 mg/l of copper, 1.5 mg/l of fluoride, and .05 mg/l of lead. Trans/Circuits has exceeded the effluent limitations for copper and lead at almost all times since at least June 1984. Trans/Circuits is not likely to comply with those standards for at least six months, by Trans/Circuits' own admission. The Operating Permit Application, Case No. 83-3676 Trans/Circuits requested a hearing to contest the DER Notice of Intent to Deny the application for an operating permit. The burden of proof and burden of going forward is therefore on Trans/Circuits to show that it is entitled to issuance of the operating permit. In this regard, Trans/Circuits did not introduce into the case any evidence relating to the operating permit application and did not introduce the application, itself. Further, Trans/Circuits did not present any evidence that its installation will abate or prevent pollution, or that it can provide reasonable assurances that the system which it seeks to operate will not discharge, emit or cause pollution. The Trans/Circuits facility has never been in compliance with DER standards and cannot provide assurances that it will be in compliance at anytime in the foreseeable future. Further Trans/Circuits has been operating without an operating permit at least since October 1983. The Month-to-Month Authorization, Case No. 84-0191 On September 17, 1982, DER issued a Notice of Violation and Orders for Corrective Action (NOV) to Trans/Circuits. The NOV alleged that Trans/Circuits violated provisions of Chapter 403, Florida Statutes, and DER rules in operation of its industrial waste water treatment and disposal system. Trans/Circuits requested and received an informal conference to discuss the allegations of the NOV, which conference was held on October 20, 1982. At the informal conference, DER and Trans/Circuits reached agreement on a resolution of the issues raised by the NOV. On November 4, 1982, a Consent Order was issued by DER, setting forth the parties' agreement and requiring Trans/Circuits to perform certain corrective actions. In the consent order, Trans/Circuits agreed not to discharge industrial wastewaters into waters of the state "without an appropriate and valid permit authorizing such discharge or having otherwise obtained Department authorization." At the time the consent order was issued, Trans/Circuits was operating pursuant to a DER construction permit which was issued for the purpose of allowing Trans/Circuits to make certain modifications to its treatment system to bring the system into compliance with DER effluent standards. The construction permit expired in January 1983, but Trans/Circuits continued to operate. About one month after the construction permit expired, DER notified Trans/Circuits that it was violating the consent order by operating without DER authorization. The parties met to discuss the matter, and agreed that Trans/Circuits would cease operation for one week to conduct bench-scale testing to identify problem areas and possible corrective actions. Trans/Circuits did cease operation and conduct the testing as agreed. Trans/Circuits presented the data resulting from their bench scale testing to DER, and represented that it had identified problem areas that needed correction. DER evaluated the data and agreed to allow Trans/Circuits to operate for a limited time to gather plant effluent quality data which would form the basis for DER's decision whether to allow operation to continue. DER did not take enforcement action to have Trans/Circuits cease operation at that time because DER wanted to give Trans/Circuits time to show that it could comply with the effluent standards as it claimed it could. On March 23, 1983, DER notified Trans/Circuits that there had been a significant improvement in the plant's ability to produce effluent of acceptable quality, and DER authorized Trans/Circuits to make modifications in order to improve effluent quality. DER at that time gave Trans/Circuits authorization to operate for an indefinite period, with the condition that DER would rescind its approval if the program of sampling and system approval did not continue. Trans/Circuits accepted the authorization on DER's terms. On April 12, 1983, DER granted Trans/Circuits' month-to-month authorization to operate ". . . provided continued improvement is made in your system's operation and the Department can reasonably anticipate system compliance." This authorization was in response to a request from Trans/Circuits for 90-day temporary operating approval in order to demonstrate that the system could comply with state standards. By letter dated October 5, 1983, DER withdrew its authorization for month-to-month operation of Trans/Cirouits' facility because it believed that compliance with state standards could no longer be reasonably anticipated. Despite Trans/Circuits' best efforts, the facility was not in compliance and DER had no assurance that continued operation would bring the facility into compliance within a reasonable amount of time. Trans/Circuits has never ceased operation since DER withdrew its month-to-month operating approval. Trans/Circuits has not had a DER permit for construction or operation of the facility since the expiration of their last construction permit in January, 1983. At a meeting on December 1, 1983, Trans/Circuits' general manager admitted that he was aware that Trans/Circuits' was in violation of the terms of the consent order by continuing to operate without DER authorization. Analysis of Trans/Circuits' plant effluent for April 1983, shows that average lead levels were 0.21 parts per million (ppm) (or mg/l), average fluoride levels were 2.45 ppm, while average copper levels were 0.51 ppm. These were the effluent levels existing when Trans/Circuits was granted its month-to- month approval for operation. Since the month-to-month authorization was granted, the majority of Trans/Circuits' effluent samples have not complied with the DER standards for lead, copper, and fluoride. Since April 16, 1984, five percent or less of Trans/Circuits' effluent samples have complied with the effluent standards for lead and copper. In the week or two prior to hearing, the majority of effluent samples contained lead at a concentration of 0.2 to 0-5 ppm (with some higher), and contained copper at a concentration of between 2 and 3.5 ppm (with some higher). The most recent data available indicate that Trans/Circuits is not in compliance with the effluent standards for lead, copper and fluoride. Daily average effluent concentrations for lead and copper are significantly greater now than they were when DER issued its month-to-month authorization. Groundwater samples just outside Trans/Circuits' property show violations of the DER standards for lead. The evidence shows that Trans/Circuits effluent quality has not improved since April 1983. Effluent concentrations of lead and copper have actually increased significantly since October 1983, when DER withdraw its month-to-month authorization. Trans/Circuits does not even expect to know before December 1984, whether its present system can attain compliance with effluent standards. The Construction Permit Application On March 8, 1984, Trans/Circuits applied to DER for a permit to construct modifications and improvements to the existing Havviland wastewater treatment system. Although the stated purpose of the requested construction was to upgrade the system to achieve compliance with the Riviera Beach Sewer Use Code so as to allow a sewer tie-in, Trans/Circuits had abandoned that purpose by the time of the hearing. Trans/Circuits now seeks to upgrade the systems so that the effluent can comply with the applicable standards for discharge to ground water. When DER received the application, it was reviewed by a DER engineer to see if it was complete. The engineer determined it was not complete, and notified Trans/Circuits on April 6, 1984, that additional information was needed to complete the review process, all of which information was necessary to determine whether a permit should be issued for the requested construction. Trans/Circuits' general manager objected to the request for additional information, claiming that all the requested information was not necessary to review the application. However, at the request of Trans/Circuits' counsel, a meeting was held between representatives of Trans/Circuits and DER to discuss the request for information that was needed for review of the application. Trans/Circuits thereafter, withdrew their objections, and agreed to provide the requested information. Trans/Circuits responded to DER's request for additional information on June 27, 1984, at 3:30 P.M. the day prior to hearing. Trans/Circuits delivered a packet of information to DER at that time that purported to be the requested information. Also at that time, however, Trans/Circuits told DER that it had already performed some of the construction for which a permit was sought, and that it was not sure what, if any, of the remaining construction would be undertaken. The information that was submitted to DER was not all of the information requested by DER. No flow diagram was submitted and waste effluent analysis was lacking. Without this information, it is impossible to determine whether or not reasonable assurance has been provided by Trans/Circuits that DER standards will be met. Even if all of the requested information had been submitted, DER could not issue a construction permit to Trans/Circuits because its future construction plans are now only speculative. Trans/Circuits does not know what modifications it intends to construct, or when exactly such modifications will be made. All that is certain is that Trans/Circuits does not intend any longer to construct the modifications for which it made application. DER evaluates applications to determines whether all proposed modifications works as a system. Trans/Circuits is the applicant for this permit and has the burden of showing that it is entitled to issuance of the permit. Here Trans/Circuits failed to present any evidence of what construction it actually plans to do, let alone that the purposed construction meets the criteria and that it is entitled to the permit.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered by the State of Florida Department of Environmental Regulation: Denying Trans/Circuits application for an operation permit; Denying Trans/Circuits application for a construction permit; and Withdrawing the month-to-month authorization for Trams/Circuits' operation. DONE and ENTERED this 19th day of September, 1984, in Tallahassee, Florida. DIANE K. KIESLING 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 19th day of September, 1984.
