Conclusions THE PARTIES resolved all disputed issues and executed a Settlement Agreement. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing, this file is CLOSED. DONE and ORDERED on this the 2{, U, day of - J lJ_h (2 ---' 2014, m Tallahassee, Florida. ELIZ RETARY Agency for Health Care Administration A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BYLAW. WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Shena Grantham, Esquire Agency for Health Care Administration 2727 Mahan Drive, MS#3 Tallahassee, Florida 32308 Peter A. Lewis, Esquire Law Offices of Peter A. Lewis, P.L. 3023 North Shannon Lakes Drive, #101 Tallahassee, Florida 32303 (U.S. Mail) CERTIFICATE OF SERVICE == ' I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to ------==-- the above named addressees by U.S. Mail on this th f 2014. Richard Shoop, Esquire Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403
The Issue The issue is whether Respondent should take corrective action by opening and removing a drain gate and dewatering an impoundment known as Lake Susan in Okaloosa County, Florida.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: a. Background On an undisclosed date, but at least several decades ago, a series of recreational earth dams and impoundments were built by a Mr. Kennedy, who developed an area now known as the Kennedy Lake Subdivision (Subdivision), which lies around five miles northwest of downtown Crestview. The small lakes created by the dams are known as the Kennedy Lake Chain, one of which is Lake Susan, which lies on Respondent's property. At least three or four of the upper lakes drain into Lake Susan through a series of large outflow pipes, which have been authorized by the District. The level of Lake Susan is regulated by a drain gate. The drain gate allows water to flow from Lake Susan through an approximate 100-foot drain pipe underlying a dam and roadway into another lake and wetlands area. The evidence shows that the dam which impounds Lake Susan is more than ten feet but less than twenty-five feet in height. See Petitioner's Exhibit 33. Thus, any work or alterations to the dam and impoundment are subject to the District's jurisdiction. See Fla. Admin. Code R. 40A-4.041(1)(a). According to Mr. Marcotte, the original drain pipe, or barrel, under the roadway was first installed by the County around 1939. The dam and impoundment were apparently built many years later when the Subdivision was developed. Because the evidence shows that barrels generally have a life of twenty years or so at most, it is likely that the pipe has been replaced at least one time since 1939, most likely when the dam was built. A small portion of the drain pipe under the dam (around thirty feet in length) is situated on Respondent's property while the remainder is located on County right-of- way. The parties agree that Respondent has the responsibility for maintaining the impoundment. (Documents submitted into evidence also suggest that the Lake Susan Homeowner's Association (Association), of whom Respondent is apparently a member, assumed this responsibility at one time.) Finally, at least a part of the dam which impounds the water is located on Respondent's property. A two-lane paved road known as Old Bethel Road runs over the crest of the dam and serves as an important connector road between State Highway 85 and U.S. Highway 90 just west of Crestview. On either February 22, 1973 or 1978, Associated Developers of Florida, Inc., whose relationship to Mr. Kennedy, if any, is unknown, quit-claimed its interest in the road to the County. See Respondent's Exhibit 3. (Because the copy of the deed provided by Respondent is partially illegible, there is some confusion over the exact date.) Since that time, the County has owned and maintained Old Bethel Road. Despite the quit claim deed, for several years after this dispute first arose in 1999 or 2000, the County denied responsibility for maintaining anything except the actual roadway above the dam. Thus, it denied responsibility for repairing the 70-foot portion of the drain pipe which lies on its right-of-way. At the hearing, however, a County representative acknowledged that it has the responsibility to maintain and repair that portion of the drain pipe which runs underneath the dam and lies in the County right-of-way. In 1996, Respondent, who is an engineer and professional helicopter pilot, purchased a residence on Lake Susan located at 1033 Tallokas Road (Section 1, Township 3 North, Range 24 West), Crestview. Tallokas Road is a local road which runs in a northeastern direction from Old Bethel Road (starting approximately 1.1 miles north of U.S. Highway 90) into the Subdivision. Lake Susan lies just north of the intersection of, and between, Tallokas Road and Old Bethel Road; Respondent's property faces Lake Susan to the southwest. In 1998, the Association performed certain repair work on the dam (apparently without authorization from the District), but Hurricane Georges struck the Florida Panhandle later that year causing at least three of the dams in the Kennedy Lake Chain to fail. When the upper dams failed, trees from those impoundments were swept into the deepest part of Lake Susan "knocking [the] standpipe off of its base." Except for a "rusted pipe," however, the dam did not otherwise fail. On August 5, 1999, Respondent (on behalf of himself and the Association), through his engineer, Mr. Dunn, filed an application with the District to perform certain repairs and alterations on the dam caused by Hurricane Georges. In the application, Mr. Dunn recited that Respondent would be responsible for all maintenance of the dam and associated appurtenances. On December 1, 1999, the District issued Surface Water Management Permit No. 4-99-021 (Permit) to the "Lake Susan Homeowners Association c/o Francis Marcotte" for the "Repair of Non-Agricultural Impoundment." The Permit provided that all construction should be completed by November 30, 2002. Under District protocol, once the construction work is successfully completed and approved, the District issues an Operation and Maintenance letter (O & M letter), which allows the permittee to impound water. Until an O & M letter is issued, however, a permittee cannot legally impound water. The District is authorized by rule to "to impose on any permit granted . . . such reasonable conditions as are necessary to assure that the permitted [activity] will be consistent with the overall objective of the District." Fla. Admin. Code R. 40A-4.041(3). Pursuant to this authority, the District imposed eighteen conditions in the Permit, two of which are described below. First, Condition No. 11 of the Permit required that the old spillway system in the dam be excavated and replaced unless the old piping system was determined to be serviceable. It also required that "[i]f the old piping system is determined to be serviceable, the District shall be notified by the project engineer." The District interprets this provision to mean that after the work authorized under the Permit has been completed, the project engineer (Mr. Dunn) must provide the District with a statement as to whether or not the entire piping system under the dam is serviceable. Mr. Dunn, however, construed the provision as only requiring him to certify that portion of the pipe which he found to be serviceable; no other statement was required. The District's interpretation is reasonable and is hereby accepted. Next, Condition No. 15 states that the authorized facility will not be considered complete until an As-Built Certification and Completion Report is filed by the project engineer, and the District determines that the project is in accordance with the approved design and any permit conditions stipulated in the construction authorization. The District interprets this provision to mean that unless all portions of the drain pipe which are not serviceable are replaced, including that portion which lies within the County right-of- way, the project will not be considered complete and no impoundment of waters will be allowed. This construction of the provision is a reasonable one and has been accepted. (The District has not involved itself in the dispute between Respondent and the County over who has the responsibility for replacing that portion of the pipe which lies in the County's right-of-way.) As required by Condition No. 5, on June 28, 2000, a pre-construction meeting was held. The meeting was attended by a County engineer, Respondent's wife, Mr. Dunn, the project contractor (B & H Moving Contractors, Inc.), and District personnel, including Mr. Laird, a District engineer. The discussions that occurred at the meeting are memorialized in a memorandum drafted by Mr. Dunn. See Petitioner's Exhibit 7. During preliminary excavation work performed by B & H Moving Contractors, Inc., it uncovered that portion of the outlet (drain) pipe lying on Respondent's property and found "two holes . . . in the second joint from the old riser" caused by corrosion. Based on this observation, which was disclosed at the pre-construction meeting, Mr. Dunn noted in his memorandum that the "entire pipe may have problems that could result in undermining Old Bethel Road." At the meeting, however, the County declined to agree that it would repair that portion of the pipe on its right-of-way until it could be established "that the pipe under the road was the responsibility of the County." On September 20, 2000, Mr. Laird received a telephone call from Respondent who said that the County had refused to replace the pipe and the parties were at an impasse. Respondent also told Mr. Laird that until the pipe was replaced, he would not shut the gate. Mr. Laird advised Respondent not to allow Lake Susan "to stage up" until the pipe was replaced. A summary of the telephone conversation is found in Petitioner's Exhibit 10, which was prepared by Mr. Laird immediately after the call. On September 26, 2000, Mr. Dunn advised Respondent by letter that B and H Moving Contractors, Inc. had completed the work on the dam in accordance with the plans and specifications. This included replacement of the drain pipe which lay on Respondent's property. The letter confirmed Mr. Dunn's understanding that Respondent had agreed to "not close the gate until Okaloosa County completes the replacement of their pipe under Old Bethel Road." See Petitioner's Exhibit 11. Over the following months, Respondent engaged in negotiations with the County in an effort to get the County to assume responsibility for its pipe. On August 17, 2000, the County advised Respondent that it would not replace the pipe. However, its engineer agreed to recommend to the Board of County Commissioners that the County would "cover the material cost of the pipe and the installation of the base and paving of the roadway." The actual work, however, would be performed by Respondent "[s]ince Lake Susan is a private lake and the pipe is part of the control structure for the lake." See Petitioner's Exhibit 12. Respondent was understandably reluctant to perform any work on County property since that would expose him to liability if a subsequent unforeseen event should occur. Although the work was probably completed much earlier, Mr. Dunn filed an "As-Built Certification and Completion Report by Project Engineer (Report) on April 1, 2002, as required by Condition No. 15. See Petitioner's Exhibit 13. That Report indicated as follows: The project was constructed in substantial conformance with the plans and specifications prepared by me. All hydraulic, structural, and environmental considerations appear to have been adequately addressed. The County still has not replaced their pipe under Old Bethel Road. The permittee has completed all work permitted to be done by him and, in my opinion, the project is completed. As noted above, Condition No. 11 required that "[i]f the old piping system is serviceable, the District shall be notified by the project engineer." According to Mr. Dunn, he did not include a certification on the County's drain pipe because he "highly suspected" that the drain pipe lying within the County right-of-way was unserviceable and in the same condition as the pipe found on Respondent's property. Therefore, he limited his certification to the thirty feet of pipe that was replaced. After the Report was filed, a lengthy series of correspondence between the parties ensued. On April 5, 2002, Mr. Laird wrote Respondent acknowledging receipt of the project engineer's Report. He stated that he was not in agreement with Mr. Dunn's certification that the project was complete because the parties had previously concluded at the pre-construction meeting that the entire pipe was unserviceable. He advised Respondent that the "impoundment must be dewatered and maintained in a dewatered condition until such time as this issue is resolved." See Petitioner's Exhibit 14. As a consequence, an O & M letter was never issued by the District. On May 7, 2002, Respondent responded to Mr. Laird's letter and stated that he was "continuing . . . to lower the lake to that of the adjoining one." He also stated that because he had done everything required under his Permit, he hoped that the matter would be considered complete. See Petitioner's Exhibit 15. On May 15, 2002, Mr. Laird responded to the above letter and reiterated that given the questionable condition of the pipe (which lay on County right-of-way), pursuant to Condition 15 the repairs to the impoundment would not be considered complete and the impoundment of water would not be authorized until the entire pipe had been replaced. He requested that Respondent "maintain the water in the lake at a lower level until such time as this issue is resolved." Finally, he reminded Respondent that the District's position on the on-going dispute with the County was that it did not matter who replaced the pipe, so long as it was "replaced and done in a legal manner." See Petitioner's Exhibit 16. By letter dated August 9, 2002, a District regulatory administrator, Mr. Morgan, advised Respondent that District staff had observed that Lake Susan was once again impounding water and that he must notify the District within fourteen days that the impoundment has been dewatered, together with his plans for the replacement of the pipe under Old Bethel Road. See Petitioner's Exhibit 17. On August 26, 2002, Respondent answered the above letter and advised in part that the outlet valve had been stolen by vandals which caused the lake to fill up but that "the valve is now open and the water level is falling." He also asked that his current permit be extended until the County agreed to perform the work. See Petitioner's Exhibit 18. In response to this request, by letter dated September 3, 2002, the District extended the deadline for completion of the project until March 1, 2003. See Petitioner's Exhibit 19. On November 21, 2002, Mr. Morgan again advised Respondent by letter that the District staff had observed that Lake Susan remained "at or near normal pool." The letter went on to say that while the District recognized Respondent's "difficulties in resolving [the issue with the County]," he was not allowed to impound water until the matter was resolved. See Petitioner's Exhibit 20. On March 3, 2003, a District field representative, Jerry Sheppard, met with Respondent concerning the level of water in the impoundment. He memorialized the conversation in a memorandum prepared the same date. See Petitioner's Exhibit According to the memorandum, the pond was "full due to excessive rains," and even though the gate was open, it had only "partial flow through the outlet pipe but [was] not opened adequately to pass storm water accumulated in the upper pond." The memorandum further stated that Respondent had assured him that "he will open the gate an additional round or two to allow further dewatering to take place while he is away on his job for the next two weeks." At the end of the meeting, Mr. Sheppard "strongly urged that the pond remain dewatered." On March 12, 2003, Mr. Laird advised Respondent by letter that his Permit had expired on March 1, 2003. This meant that Respondent could not undertake any work on the facility without District approval and that he must maintain the facility in a dewatered condition. See Petitioner's Exhibit 22. On January 21, 2004, Mr. Morgan sent Respondent a letter advising that the District staff had observed "that Lake Susan was once again impounding water to within 1.5 inches of the designed water level." He added that "the facility must be completely dewatered, and maintained dewatered, until such time as the issue has been resolved." The letter warned that if Lake Susan was not dewatered, a formal enforcement action would be initiated. Finally, the letter requested that Respondent contact the District within fourteen days "noticing [the District] that the impoundment has been dewatered and [that Respondent] plan[ned] to replace the old pipe under Old Bethel Road, or [Respondent] will remove the head gate from the riser base." See Petitioner's Exhibit 23. On March 3, 2004, Respondent, Mr. Laird, and various County representatives met in Crestview in an effort to resolve the issue of who would replace the remaining portion of the drain pipe. The discussions at the meeting are recorded by Mr. Laird in a memorandum dated March 4, 2004. See Petitioner's Exhibit 24. The memorandum states in part that "all [participants] agreed that the pipe is not serviceable as a spillway pipe." At the meeting, the County refused to accept responsibility for fixing the drain pipe. Its Public Works Director (Director) also stated that even if a quit claim deed showed that the pipe was on their right-of- way, the County would not repair the pipe; instead, the Director asserted that the County would prevent Respondent from impounding water. Finally, contingent upon the Board of County Commissioners approving her recommendation, the Director agreed to purchase the seventy feet of pipe if Respondent would perform all excavation work and install the pipe at his own expense. See Petitioner's Exhibit 24. By letter dated March 5, 2004, the Director confirmed in writing her previous offer to Respondent that she would request authorization from the County to purchase seventy feet of pipe, reconstruct Old Bethel Road after the pipe was replaced, and close the road during the construction process. However, the Director expected Respondent to provide all other necessary material and work effort associated with the pipe replacement. See Petitioner's Exhibit 25. On March 8, 2005, Respondent agreed to accept the County's offer. See Petitioner's Exhibit 26. Presumably based on this understanding, on March 8, 2004, Mr. Morgan advised Respondent that he would "allow up to 90 days for [Respondent] to be able to make the necessary replacement." This was followed by a letter from Mr. Laird on April 12, 2004, requesting that Respondent provide a proposed work schedule so that the District could generate an order extending the time for the work to be completed. See Petitioner's Exhibit 27. On April 27, 2004, Respondent (who was off-shore in the Gulf of Mexico on flight duty) sent a "rapid memo" to Mr. Laird advising that he had just received a verbal bid offer and would forward a work schedule as soon as a formal contract was signed. See Petitioner's Exhibit 29. He also sent Mr. Laird a memorandum on this subject on May 13, 2004, but that document was not made a part of this record. By letter dated May 19, 2005, Mr. Laird answered Respondent's two memoranda and indicated that two technical issues needed to be resolved. He also enclosed for Respondent's review a copy of a draft permit which authorized the work to be performed. See Petitioner's Exhibit 30. Sometime during this time period, and perhaps after he received the bid, Respondent decided that he would not assume the responsibility (and liability) for working on County property and offered instead to pay the County for one- half of the project's cost (which totaled around $25,000.00) so long as the County would do the work. Apparently, the County refused this offer, and the project was never undertaken. On August 12, 2004, a District administrator (Norman Velazquez) advised Respondent's counsel by letter and facsimile that District staff had inspected Lake Susan that morning and observed that "the impoundment was operating at full capacity contrary to previous District communications ordering the dewatering of it." The letter noted that the matter had been discussed by telephone the same day and that counsel had agreed that the information in the letter would be shared with Respondent in a timely manner. See Petitioner's Exhibit 31. By letter dated September 13, 2004, Mr. Velezquez again advised Respondent's counsel that a follow-up inspection that day revealed that "the impoundment was operating at full capacity." The letter also stated that Respondent "is required to dewater the unauthorized impoundment of water by Monday, September 21, 2004." Finally, Respondent was warned that if he did not dewater Lake Susan, it would "leave [the District] no choice but to issue an Administrative Complaint Order against Mr. Marcotte." See Petitioner's Exhibit 32. On February 1, 2005, the District issued its Administrative Complaint. Between April 2003 and December 2004, a District field representative (Mr. Sheppard) visited the site on a number of occasions. On each occasion, he observed that the impoundment was full and that dewatering had not occurred. In July 2005, the County reversed its position and agreed that it had the responsibility to replace the pipe if it was not serviceable. The County also agreed to hire a vendor who would place a special video camera in the pipe to detect any holes, rust, or other deterioration. The County further agreed that if defects were found, it would replace the pipe at its own expense. This was confirmed at hearing by the County's Risk Management Director. On August 25, 2005, the County advised Respondent by letter that the inspection had taken place, that the County was working on a solution and probably intended to "insert a sleeve inside the existing pipe" to correct the problem, and that the project had been assigned to the Public Works Director with "a high priority." The current status of the project is unknown. Although Respondent argues in his Proposed Recommended Order that the District has never established that the County's portion of the drain pipe is unserviceable, the greater weight of evidence shows the opposite to be true. Indeed, all of the experts who testified at hearing agreed that the drain pipe should be replaced due to its age and the defects observed when the dam was excavated and a portion of the pipe exposed for inspection in 2000. In addition, a part of the earthen dam is saturated with moisture, and voids have developed in the interior of the structure. Collectively, these conditions have led the District to properly conclude that the impoundment of the water constitutes a danger to the public since Old Bethel Road might collapse at any time. Because of this, no impoundment of waters should occur until the pipe is replaced.
The Issue The issue to be determined by this Recommended Order of Dismissal is whether the Petitioners have standing to challenge a Settlement Agreement in OGC File No. 07-0177 (the Settlement Agreement), entered into by the Department of Environmental Protection (DEP) and Respondents, Allied Universal Corporation (Allied) and Chem-Tex Supply Corporation (Chem-Tex), for the assessment and remediation of contamination at a bleach- manufacturing and chlorine-repackaging facility in St. Lucie County.
Findings Of Fact The Parties The Conservation Alliance is a Florida, not-for-profit corporation in good standing, incorporated in 1985, with its corporate offices currently located at 5608 Eagle Drive, Fort Pierce, Florida. It has approximately 200 members, at least 100 of which reside in St. Lucie County. The Conservation Alliance was formed to “protect the water, soil, air, native flora and fauna, upon which all the earth?s creatures depend for survival.” Indian Riverkeeper is a Florida, not-for-profit corporation in good standing, incorporated in 1999, with its corporate offices currently located at 1182 Southeast Mendavia Avenue, Port St. Lucie, Florida. It has approximately 150 members. The parties agreed, by stipulation, that Indian Riverkeeper has 25 or more members that live in St. Lucie County. Indian Riverkeeper was formed “to enforce local, state and federal environmental laws through citizen suits, [and] scientific and educational programs to increase awareness of citizens? standing to compel government to enforce laws to protect the environment.” The DEP is an agency of the State of Florida having jurisdiction to control and prohibit pollution of air and water, pursuant to chapters 376 and 403, Florida Statutes, and the rules promulgated thereunder. Pursuant to that authority, the DEP took the enforcement action that culminated in the entry of the Settlement Agreement that is the subject of this proceeding. Allied owns and operates the Facility, and is responsible for the remediation of contamination resulting from activities at the Facility. Chem-Tex owns the real property on which the Facility is located. Entry of the Settlement Agreement On June 21, 2010, the DEP, Allied, and Chem-Tex entered into the Settlement Agreement that is the subject of this proceeding. The Settlement Agreement required Allied and Chem- Tex to pay a monetary penalty to the DEP, and to identify, prevent, and remediate contamination on the Facility. The Settlement Agreement required publication of a notice of the Settlement Agreement, which provided that persons whose substantial interests are or will be affected could, within 45 days of the date of publication, petition for a hearing to challenge the proposed Settlement Agreement. The notice was published on June 28, 2010. Thus, the last date for filing a timely petition was August 12, 2010. On August 12, 2010, Petitioners electronically filed their Petition with the DEP. Allegations of Standing Petitioners alleged standing to challenge the Settlement Agreement based on the following, as set forth in the Petition: The Conservation Alliance is a conservation group based in Fort Pierce, Florida, organized for the purpose of protection of the State?s natural resources, including drinking water, and the rivers and other waters in St. Lucie County. Indian Riverkeeper is a citizen?s group, organized for the purpose of protecting and restoring the State?s natural resources within St. Lucie County. Members of both the Conservation Alliance and Indian Riverkeeper own real property within St. Lucie County. Substantial amounts of hazardous waste have contaminated the Facility, which has caused significant environmental harm to the groundwater underlying the site and resulted in off-site surface water discharges. Contamination is spreading to adjacent properties which pump groundwater for potable water supply and agricultural irrigation purposes. St. Lucie County has proposed a major drinking water wellfield within one-quarter mile of the Facility, which use is endangered by the existing groundwater contamination. Petitioners have a substantial interest in ensuring that Allied and Chem-Tex comply with requirements established by the Resource Conservation and Recovery Act. The DEP has executed a Settlement Agreement that will become valid and destroy the DEP?s right to seek additional penalties and enforcement relating to Allied?s violations. Allied?s past violations have created substantial plumes of contaminants in the groundwater system underlying its property, which if not remediated may migrate off-site and contaminate deeper zones of the surficial aquifer system. Standing -- Effects of Contamination Petitioners alleged that deficiencies in the Settlement Agreement may affect their substantial interests due to the effects of the contamination on the interests of their members, who use the potable water and other resources affected by the contamination. The only testimony offered at the hearing as to the use of the lands in the vicinity of the Facility was offered by Anthony Brady, the current president of the Conservation Alliance, who knew of no members of the Conservation Alliance that used any lands within five miles of the Facility. There was no testimony or other evidence offered regarding the use of lands in the vicinity of the Facility by any member of Indian Riverkeeper. As to the allegations that deficiencies in the Settlement Agreement would affect “potable water and irrigation wells located in the immediate vicinity of the facility,” there was no evidence that any member of the Conservation Alliance or Indian Riverkeeper received service from those wells. Mr. Brady and Elaine Souza receive water service from unidentified public water supply sources in St. Lucie County. Kevin Stinnette receives water from a source other than the Fort Pierce Utilities Authority. There was no allegation or evidence that the sources of their water were threatened by the contamination -- regardless of whether any such threat could be proven on the merits. There was no competent, substantial, non-hearsay evidence as to a particular source of potable water for any member of either the Conservation Alliance or Indian Riverkeeper that would “connect the dots” between the general allegations of groundwater contamination at the Facility, and the potable water supply of any member. For example, Petitioners alleged that their members own property in St. Lucie County, and that contamination is spreading from the Facility to adjacent properties which pump groundwater for potable water supply and agricultural irrigation purposes and, that if not remediated, such contamination may impact deeper zones of the surficial aquifer system and affect potable water and irrigation wells in the vicinity of the Facility. However, Petitioners utterly failed to prove that any of their members use, own, or have any interest in the adjacent properties that are in jeopardy of being contaminated, or that they are served by any of the potable water or irrigation wells alleged to be threatened by the contamination. The undersigned -- having accepted the allegations in the Petition of adverse effects of the contamination at the Facility and the deficiencies of the Settlement Agreement, having accepted and applied the testimony and evidence taken at the hearing, and without going to the merits of the Settlement Agreement -- is unable to find, based on the record of this proceeding, that Petitioners? substantial rights could be affected by the Settlement Agreement. Thus, Petitioners failed to produce the quantum of admissible, non-hearsay evidence necessary to demonstrate that they or their members will suffer an injury in fact which is of sufficient immediacy to entitle them to a hearing to challenge the Settlement Agreement. Standing -- Effects on Recreational Use In addition to the foregoing, Petitioners assert in their Proposed Recommended Order that “[a] substantial number of [their] members use, recreate, and protect the waters of St. Lucie County,” and that those members could be adversely affected by exposure to contamination due to the proximity of the Facility “to nearby navigable water bodies, fisheries, rivers and streams from which Conservation Alliance and Indian Riverkeeper members are provided with potable water and recreation.” The Conservation Alliance holds an Annual “Party in the Park” at the Fort Pierce Inlet State Park, and has monthly meetings at the Savannas State Preserve Education Center. There was no allegation or evidence as to how either of those locations were or could be affected by contamination from the Facility or by the Settlement Agreement. Indian Riverkeeper holds an annual “Mullet Run Festival” in Fort Pierce, and “other quarterly events that are sort of like our meetings” at locations in Fort Pierce and Jensen Beach, Florida. The venues for the Indian Riverkeeper events, beyond the cities in which they were held, were not identified. There was no allegation or evidence as to how those particular locations were or could be affected by contamination from the Facility or by the Settlement Agreement. Mr. Brady understood that one of Petitioners? members, George Jones, fishes in the C-24 canal. Mr. Brady has not personally fished in the C-24 canal for 25 years. Mr. Brady otherwise provided no evidence of the extent to which he or any members of the Conservation Alliance used or enjoyed the waters in or around St. Lucie County. Mr. Stinnette has recreated in various water bodies that are tributaries of the Indian River Lagoon system. He indicated that he had engaged in recreational activities in and on the waters of St. Lucie County with “dozens” of people over the past 16 years, some of whom were members of the Conservation Alliance or Indian Riverkeeper. There was no evidence offered as to how many of those persons were members of either of the Petitioners, as opposed to friends that have visited his house to fish off of the dock, or whether they were current members during the period relevant to this proceeding. Mr. Stinnette testified that the previously mentioned Mr. Jones told him that he kayaked in the waters of St. Lucie County. However, as to the recreational activities of other Conservation Alliance members, Mr. Stinnette testified that “I don't know, I don't keep up with their day-to-day activities to that extent.” Although Mr. Jones testified at the hearing, he provided no information as to the nature or extent of his recreational uses of the waters of St. Lucie County. The only evidence of Mr. Jones? recreational use of the waters of St. Lucie County is the hearsay testimony of Mr. Brady and Mr. Stinnette, which is not sufficient to support a finding of fact as to Mr. Jones? use. The only finding that can be made as to the recreational use of the waters of St. Lucie County by current members of the Conservation Alliance and Indian Riverkeeper is limited to a single member, Mr. Stinnette, who is a member of both organizations. Based thereon, Petitioners failed to prove that a substantial number of their members make any recreational or other use of the waters of St. Lucie County. Thus, Petitioners failed to produce the quantum of admissible, non- hearsay evidence necessary to demonstrate that they or their members will suffer an injury in fact to their substantial rights of use, recreation, and protection of the waters of St. Lucie County which is of sufficient immediacy to entitle them to a hearing to challenge the Settlement Agreement. Standing -- Other Issues Petitioners, and primarily Indian Riverkeeper, allege that their substantial interests are affected by the inadequacy of the penalty assessed in the Settlement Agreement, and by the purported preclusion of their right to “bring[] a citizen suit against Allied and Chem-Tex for their chemical spills . . . for violation of the Clean Water Act if it were not for the settlement negotiations taking place between Allied and the FDEP.” As to the issue of the inadequacy of the monetary penalty, the undersigned finds that the penalty to be assessed and paid by Respondents to the DEP has no effect on the substantial interests of Petitioners or their members. In that regard, the economic component of the Settlement Agreement does not result in any of Petitioner?s members being exposed to contaminants, or in any restriction on their recreational or other uses of the lands or waters of St. Lucie County. Therefore, the penalty amount does not result in an injury in fact which is of sufficient immediacy to entitle Petitioners to a section 120.57 hearing. Cf. Dillard & Assocs. Consulting Eng'rs v. Fla. Dep't of Envtl. Prot., 893 So. 2d 702 (Fla. 1st DCA 2005) (finding no standing on the part of a DOT contractor to challenge an administrative penalty levied by the DEP against DOT, even when the penalty may, at some time in the future, be assessed against the contractor). As to the injury resulting from the alleged restriction on Petitioners? rights to bring a federal lawsuit under the Clean Water Act, there was no evidence of any current intent on the part of Petitioners to bring such a lawsuit, nor was there any evidence, beyond the bare assertion, of any such restriction or preclusion on bringing a suit. Thus, Petitioners failed to prove any injury in fact which is of sufficient immediacy to entitle Petitioners to a section 120.57 hearing. Furthermore, the effect of agency action on the ability of a person to bring an independent action in another forum is not an injury of the type or nature that this proceeding is designed to protect.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that Respondent, Department of Environmental Protection, enter a final order dismissing the Petition for Formal Administrative Proceedings. DONE AND ENTERED this 24th day of May, 2013, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 24th day of May, 2013.
Findings Of Fact On December 31, 1976, Respondent's territorial jurisdiction was expanded by transfer of substantial areas formerly regulated by other water management districts. The transfer was effected pursuant to legislative revision of Section 373.069, F.S., which delineates the geographic boundaries of Florida's water management districts. The following rule promulgated by Respondent became effective on January 31, 1977, and was amended on February 3, 1981: 40C-4.031 (previously 16I-4.04, Florida Administrative Code). Implementation. These regulations shall become effective February 1, 1981, throughout the District and will be implemented in those areas transferred to the St. Johns River Water Management District from the Central & Southern Florida Flood Control District and the Southwest Florida Water Management District on the same date. Implementation in other areas will be effected pursuant to public hearing at subsequent dates determined by the Board. The regulations implemented by the above rule establish permitting procedures for projects which involve holding, diversion, or discharge of significant quantities of water. However, permits are required only in the transferred territory. Petitioner owns 11,500 acres located within the territory where permits are required. Petitioner seeks to improve his property for agricultural purposes, which involves the holding and diversion of surface waters. He has accepted Respondent's determination that his property is within the permitting area and has filed the requisite application. However, Petitioner contends that he is unable reasonably to confirm Respondent's determination that his property is situated in the regulated territory. Respondent demonstrated that a determination can be made by comparing the statutory descriptions of Respondent's jurisdiction prior to and after the transfer, and has maps available which reflect the permitting area. To accomplish this task independently requires knowledge of legal territorial descriptions (section, township, range) and a laborious comparison of legal descriptions set out in the 1975 and 1977 versions of the Florida Statutes. At the time reorganization of the water management districts became effective (December 31, 1976) , Respondent had limited regulatory capability. Its decision to implement permitting only in the transferred territory was based on this limited capability and the need to preserve continuity 1/ in areas where permits had previously been required. In the years following this decision, Respondent has continued to require permits only in those areas transferred in 1976. The evidence established that the boundary between the regulated and unregulated areas is one of convenience and has no hydrological or other scientific basis. Respondent is considering a revision of its rules to become effective sometime in 1982. This revision may enlarge the permitting territory and modify the criteria for grant or denial of permits. Petitioner asserts that his application is being evaluated by rules not yet adopted and fears that new standards may be applied after hearing on the application, which is now under consideration pursuant to Subsection 120.57(1), F.S., (DOAH Case No. 81-1588). Hearing is scheduled for December, 1981. In support of this contention, Petitioner points to the technical staff report prepared in May, 1981, which recommends denial of the application giving, among others, the following reasons: Volumes 1 and 2 of Phase 1 of the Upper Basin Plan catalogue a history of a diminish- ing water resource in the upper basin. The water resources in the upper basin have been harmed and the proposed project aggravates the existing harm to the resource. Moreover the proposed project is inconsistent with the overall objectives of the district for the upper basin. Resolutions 75-11 and 81-2, the 1977 Management Plan, and Volumes 1 and 2 of Phase I of the Upper Basin Plan indicate that the objectives of the District are to curtail inter-basin diversion and maintain and enhance, if possible, the existing hydro- logic regime in the upper basin. The pro- posed project is not in conformance with either of these statutory requirements. (Emphasis added.) An earlier technical staff report prepared in November, 1980, recommended grant of the application, with some modification. This report did not refer to inter-basin diversion.
The Issue The issue to be determined in these consolidated cases is whether proposed Florida Administrative Code Rule 62-42.300 is an invalid exercise of delegated legislative authority.
Findings Of Fact The parties agree and the Administrative Law Judge has determined that there exists no genuine issue as to any material fact. In the December 4, 2014 SERC addendum, the Department described the changes to the proposed rule as follows: The Notice of Change filed on November 7, 2014 does not change the proposed minimum flows or the recovery strategy included in the proposed rules. The Notice of Change merely adds the existing technical information that the Administrative Law Judge found missing in the original rule text, which results in the proposed rule being found by the Judge to be vague. Specifically, these changes include: Adding the period of record used to establish the baseline flows in the Lower Santa Fe and Ichetucknee Rivers and subsequently used to develop the proposed minimum flows, and, Adding the method used for filling the data gaps in the baseline flow record for the Ichetucknee River. The Final Order in Still-I determined that the proposed minimum flows were vague because they did not include a period of record (of water flow data) to be used with the flow duration frequencies. Flow duration frequencies are percentages of time that a particular amount of flow (in cubic feet per second) is equaled or exceeded, which can vary depending on the period of record that is used. The proposed rule now describes the period of record that was used to derive the minimum flows. Petitioners contend that the rule is still vague because the rule does not identify the period of record that will be used in the future to determine whether the minimum flows are being achieved. Petitioners expressed concern that Suwannee River Water Management District might use a scientifically unsound period of record to determine that the MFL waterbodies are no longer “in recovery.” Neither the Department nor Suwannee River Water Management District identified in Still-I or in this proceeding the period of record that will be used to determine whether the minimum flows have been achieved. However, the Recovery Strategy for the MFL waterbodies is in its first phase. The rule contemplates that the MFL waterbodies will remain in recovery at least until completion of the North Florida Southeast Georgia Regional Groundwater Flow Model in 2019 and the MFLs and the Recovery Plan are re-evaluated with the model as part of phase See proposed Fla. Admin. Code R. 62-42.300(1)(d). This interpretation was confirmed by the Department and the District at the hearing on the motions for summary final order. The Supplemental Regulatory Measures (which are unchanged) do not require applicants for consumptive use permits to determine or show how a proposed withdrawal of water will affect the flow duration frequencies set forth in the rule. The period of record to be used in determining whether the minimum flows are achieved is not used in the permitting process.
Findings Of Fact The Petitioner is the owner of Lot 22 at Hatch Bend Upon Suwannee, a subdivision platted and recorded in 1979. Lot 22 lies at river mile 59 of the Suwannee River, as determined by the Suwannee River Water Management District. The Petitioner purchased the property for a site to construct a residence for his retirement. He desires an OSDS to serve a small dwelling which he proposes to construct on the site of approximately 1,000 square feet. The lot is two acres in size. The subject lot is high, level and well drained. In depth, it extends approximately 600 feet from the shoreline of the Suwannee River, upon which it has approximately 150 feet of river frontage. The lot is not subject to frequent flooding, however, as established by a registered land surveyor, the grade elevation of the lot is approximately 19.7 feet above mean sea level ("MSL"), with a benchmark elevation of 20.20 feet at the highest point. The ten-year flood elevation for river mile 59 was established, through information derived from the records of the Suwannee River Water Management District, and in evidence, to be 24 feet above MSL. Thus, the surface of the property involved and the septic tank system installation site lies beneath the ten-year flood elevation. The property, in other particulars, appears to comply with the statute and rules governing requirements for the grant of OSDS permits. That is, the water table level was shown to be more than 72 inches below the surface of the property, which is more than adequate in terms of separation of the proposed drainfield trenches from the ground water table. The soil lying beneath the property is "fine sand", which is a limited soil of an appropriate type for the successful functioning of an OSDS. Based upon mottling found in the soil, the water table during wet seasons is estimated to be at 72 inches below the surface, again, a more than adequate separation between the water table during wet seasons and the bottom of the proposed drainfield trenches. Thus, the subject site is amenable to the installation of an OSDS, but for the fact of its elevation beneath the required ten-year flood elevation. In terms of establishing entitlement to a variance from the subject rule concerning the prohibition of installation of drainfield trenches which will be subject to flooding based upon the ten-year flood elevation, the Petitioner offered no real concrete evidence. The Petitioner merely testified that it was a hardship for him not to be able to construct his proposed retirement home on the property because of the inability to obtain an OSDS permit; however, he did not establish that there were no reasonable alternatives to the normal OSDS proposed and applied for, as for instance, a mounded system so that the drain fields could be installed above the ten-year flood elevation or some other alternative sewage disposal and treatment system. Thus, the Petitioner did not establish that no reasonable alternative exists but to install the normal OSDS, nor did the Petitioner establish that installation of such a system beneath the natural grade would pose no threat to the public's health or the health of the Petitioner. The Petitioner did not establish that such a system would not pose an adverse impact on surface and ground waters in and in the vicinity of the proposed installation site. Thus, no entitlement to a variance from the permitting requirements in the statute and rules cited below was established. The Respondent takes the position that the variance and the permit application should be denied because the proposed installation site lies below the ten-year flood elevation, and, as the Respondent interprets the Governor's Executive Order No. 90-14, issued on January 17, 1990, which adopted Suwannee River Task Force Report Recommendation NO. 36 by reference, the variance request and the permit application should be denied because that Executive Order and the Report Recommendation it incorporates, in essence, calls for the prohibition of any installation of such systems below the ten-year flood elevation based upon a presumption that such would adversely affect public health and the ground and surface waters. The Respondent takes the position that it cannot discretionarily grant variances in such a situation because of the Executive Order.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that the application of Vernon Merritt for an OSDS permit and for a variance from the above-discussed permitting requirements, be denied. DONE AND ENTERED this 18th day of December, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 90-3340 The Petitioner submitted no proposed findings of fact. Respondent's Proposed Findings of Fact 1. Accepted. Accepted. Accepted. 4-5. Accepted, but not relevant and material. COPIES FURNISHED: Sam Power, Agency Clerk Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda K. Harris, Esq. General Counsel Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Vernon Merritt P.O. Box 325 Inglis, FL 32649 Frances S. Childers, Esq. Assistant District 111 Legal Counsel Department of HRS 1000 N.E. 16th Avenue Gainesville, FL 32609 =================================================================
