The Issue The issue to be determined by this Order is whether the Petition for Formal Proceedings filed with the Department of Environmental Protection (DEP) on February 4, 2009, was timely 1/ and, if so, whether Petitioners have standing to challenge the DEP?s issuance of the Minor Modification to FDEP Operation Permit 171331-002-UO for IW-1 under 171331-003-UC (the Permit Modification).
Findings Of Fact The Parties The Conservation Alliance is a Florida not-for-profit corporation in good-standing, with its corporate offices currently located at 5608 Eagle Drive, Fort Pierce, Florida. The Conservation Alliance has approximately 200 members. Elaine Romano is a resident of St. Lucie County, Florida. The DEP is an agency of the State of Florida having jurisdiction for permitting UIC facilities and the waste-streams being discharged to such facilities, pursuant to chapter 403, Florida Statutes, and the rules promulgated thereunder. Pursuant to that authority, the DEP issued the Permit Modification that is the subject of this proceeding. FPUA provides utility service to the City of Fort Pierce, Florida. FPUA owns and operates a Class I industrial injection well (IW-1), discharges to which are the subject of the Permit Modification. Allied owns and operates a chlorine bleach manufacturing facility which produces a brine waste-stream that is proposed for disposal to IW-1. Issuance of the Permit Modification On December 19, 2008, the DEP issued a Notice of Permit, Permit Number 171331-002-UO (FPUA operation permit), which authorized the operation of IW-1 at the Gahn wastewater treatment plant. The Gahn wastewater treatment plant and IW-1 are owned and operated by the FPUA. The FPUA operation permit authorized the disposal of concentrate and water treatment by- product from FPUA?s reverse-osmosis water facility at a permitted rate of 2.8 million gallons per day. FPUA also owns and operates water production wells that serve the City of Fort Pierce potable water supply system. IW-1 was constructed within 500 feet of three of the FPUA production wells, which required FPUA to obtain a variance from setback requirements. On July 17, 2008, prior to the issuance of the FPUA operation permit, Allied submitted an application for a major modification of the FPUA operation permit. The application proposed the disposal to IW-1 of up to 21,600 gallons per day of a brine waste-stream that is a by-product of the production of chlorine bleach. The application cover letter provides that “[w]hile we have been notified that this project is only a Minor Permit Modification, we feel by submitting for a Major Permit Modification that the Department will have the ability to review the application and downgrade the application to a Minor Permit Modification, if needed.” On December 30, 2008, the DEP issued the Permit Modification as a minor modification of the FPUA operation permit. The Permit Modification allowed a maximum of 21,600 gallons of brine to be received at the FPUA facility and disposed of in IW-1. Notice of the Permit Modification On or about September 12, 2008, a paralegal for Ruden McClosky, Lucinda Sparkman, requested information from the DEP regarding the procedure for receiving notification of permit applications and DEP action thereon. Her request was subsequently refined to request notice regarding two permits, those being “injection Well Construction, application #171331- 003,” and the other being “Water-Industrial Wastewater, application #FLA017460-004.” DEP File No. 171331-003 is that pertaining to the Permit Modification. At the time of the request, Ruden McClosky represented Odyssey Manufacturing Company (Odyssey), an economic competitor of Allied.3/ On September 24, 2008, Ms. Sparkman asked to be “put on the distribution list for the URIC permit for Fort Pierce.” From September 24, 2008 through December 15, 2008, Ms. Sparkman made periodic requests for information, and received periodic updates from the DEP. On December 19, 2008, the DEP sent Ms. Sparkman an e- mail indicating that the FPUA operation permit had been issued, and later that same day sent Ms. Sparkman an electronic copy of the permit. On December 19, 2008, Ruden McClosky made a public records request to FPUA for, among other items, records pertaining to the disposal of brine to the Gahn Water Plant underground injection well, and any agreements between FPUA and Allied regarding the disposal of brine. The request was made on behalf of Florida Tire Recycling, Inc. (Florida Tire). On December 22, the DEP sent Ms. Sparkman a copy of the notice of intent for the FPUA operation permit. There is no record evidence of further communication or inquiry between Ruden McClosky and the DEP from December 22, 2008 to January 14, 2009. On January 9, 2009, notice of the Permit Modification was published in the Fort Pierce Tribune. The notice was prepared and publication arranged by counsel for Allied. The published notice provides the information required by rule 62-110.106(7)(d), and stated that any challenge to the Permit Modification was required to be received by DEP within 14 days of publication or, for persons that requested actual notice, within 14 days of receipt of such actual notice. On January 14, 2009, Ms. Sparkman called her contact person at the DEP to inquire about the Permit Modification. That call was not returned. On January 21, 2009, Ms. Sparkman again called the DEP to inquire about the Permit Modification. In response to Ms. Sparkman?s inquiry, the DEP sent Ms. Sparkman an electronic copy of the Permit Modification. Ms. Sparkman made further inquiry on January 21, 2009, as to whether the notice of the Permit Modification had been published in a newspaper. On January 22, 2009, the DEP replied that “[e]verything was noticed as required.” On January 22, 2009, the Fort Pierce Tribune prepared an affidavit of publication of the notice. The affidavit of publication was received by counsel for Allied on January 28, 2009, who sent the affidavit to the DEP by certified mail on January 29, 2009. Alleged Defects in the Notice of Permit Modification Petitioners have alleged a number of procedural defects that they contend render the published notice ineffective to establish a deadline of 14 days from the date of the notice to file a challenge to the Permit Modification. Late Proof of Publication Petitioners allege that Allied filed the proof of publication with the DEP more than seven days from the date of publication, and that delay made such publication ineffective to establish a deadline for filing the petition. Although the proof of publication was provided to the DEP on or shortly after January 29, 2009, the evidence demonstrates that Allied provided the proof of publication to the DEP immediately upon receipt from the Fort Pierce Tribune newspaper. The delay in filing was not within the control of Allied, or anyone else associated with the Permit Modification. As established by rule 62-110.106(9), proof of publication is required by the DEP to provide assurance to the DEP that required notice has, in fact, been published, with the sanction being the delay or denial of the permit. The rule does not suggest that a delay in providing proof of publication to the DEP serves to alter or extend the time for filing a petition. There is little case law construing the effect of a delay in providing proof of publication on the petition rights of a person challenging the proposed agency action. However, the undersigned agrees with, and adopts, the following analysis of the issue provided by Administrative Law Judge P. Michael Ruff: . . . the purpose of requiring an applicant to publish notice of agency action is to give substantially affected persons an opportunity to participate in an administrative proceeding. See Section 403.815, Florida Statutes, and Rule 17- 103.150(4), Florida Administrative Code. Consequently, the crucial element in the Department's publication requirement is that the notice be published to trigger the commencement of the time for affected persons to request a hearing. The requirement that proof of publication be provided to the Department does nothing to affect the rights of third parties, but merely is a technical requirement which allows the Department to determine whether a third party has timely exercised its rights to contest a published notice of intended agency action. If an applicant publishes notice of intended agency action, but fails to timely provide the Department with proof of that publication, the deficiency is one which is easily cured. No harm will occur because the permit will not be issued until proof of publication is received by the Department, in any event, because of Rule 17-103.510(4), Florida Administrative Code. Bio-Tech Tracking Systems, Inc. v. Dep?t of Envtl. Reg., Case No. 90-7760, ¶32 (Fla. DOAH Apr. 3, 1991; Fla. DER May 17, 1991). The filing of the notice beyond the seven-day period in rule 62-110.106(5) was, at most, harmless error, did not adversely affect any rights or remedies available to Petitioners, and does not affect the fairness of this proceeding. Notice Prepared by Counsel Petitioners allege that the notice was prepared by Allied?s counsel, rather than the DEP, and that the notice was therefore ineffective to establish a deadline for filing the petition. Publication of the notice of the Permit Modification was not required, since it was a minor modification. Thus, publication was at Allied?s option. Rule 62-110.106(10)(a) provides, in pertinent part, that: Any applicant or person benefiting from the Department?s action may elect to publish notice of the Department?s intended or proposed action . . . in the manner provided by subsection (7) or (8) above. Upon presentation of proof of publication to the Department before final agency action, any person who has elected to publish such notice shall be entitled to the same benefits under this rule as a person who is required to publish notice. The most logical construction of rule 62-110.106 is that the DEP is responsible for preparing required notices pursuant to rule 62-110.106(7)(c), but that non-required notices may be prepared and published at the applicant?s or beneficiary?s option without direct DEP involvement. In this case, the notice was prepared by an authorized agent of the corporate “person” that benefitted from the Permit Modification. The more salient point regarding the preparation of the notice is whether it contained all of the information required by rule. The evidence demonstrates that it did, and that the notice was sufficient to provide a meaningful and complete point of entry to the public of the Permit Modification and the rights attendant thereto. The fact that the notice was prepared by Allied?s counsel was, at most, harmless error, did not adversely affect any rights or remedies available to Petitioners, and does not affect the fairness of this proceeding. Lack of Actual Notice Petitioners allege error in the notice process because actual notice of the Permit Modification was not provided to Petitioners. The basis for the alleged deficiency was that Mr. Stinnette had, in 2003, asked to be placed on the DEP?s UIC mailing list, but did not receive the notice of the Permit Modification. Rule 62-110.106(2) provides that published notice establishes the point of entry for the public to challenge proposed agency action “except for persons entitled to written notice personally or by mail under Section 120.60(3), Florida Statutes, or any other statute.” Section 120.60(3) provides that a notice of proposed agency action shall be mailed “to each person who has made a written request for notice of agency action.” The preponderance of the evidence demonstrates that Mr. Stinnette was acting solely as an agent of Indian Riverkeeper when he requested to be placed on the UIC mailing list. He was not requesting notices in his personal capacity, or as an agent of the Conservation Alliance or Ms. Romano. Thus, Indian Riverkeeper was entitled to notice of the Permit Modification. Indian Riverkeeper is not a party to this proceeding. The undersigned is not willing to attribute a request for actual notice to any person other than the person requesting such notice. The DEP?s failure to provide written notice of the Permit Modification to Indian Riverkeeper did not adversely affect any rights or remedies available to the Conservation Alliance or Ms. Romano, and does not affect the fairness of this proceeding. Lack of Information Pursuant to Rule 62-528.315(7) Finally, Petitioners argue that the published notice was ineffective because it did not include the name, address, and telephone number of a DEP contact person, citing rule 62- 528.315(7)(d). The provision cited by Petitioners involves DEP notices that are required when the DEP has prepared a draft permit, draft consent order, or has scheduled a public meeting as identified in rule 62-528.315(1). The notice requirement in rule 62-528.315(7) does not apply to a notice of proposed agency action, which is governed by rule 62-528.315(10), and which provides that: “[a]fter the conclusion of the public comment period described in Rule 62-528.321, F.A.C., and after the conclusion of a public meeting (if any) described in Rule 62- 528.325, F.A.C., the applicant shall publish public notice of the proposed agency action including the availability of an administrative hearing under Sections 120.569 and 120.57, F.S. This public notice shall follow the procedure described in subsection 62-110.106(7), F.A.C. (emphasis added). The published notice of the Permit Modification was consistent with the notice described in rule 62-110.106(7), and therefore complied with rule 62-528.315(10). For the reasons set forth herein, there were no defects in the published notice of proposed agency action that serve to minimize the effect of that published notice on the time for filing a petition challenging the Permit Modification, that adversely affect any rights or remedies available to the Conservation Alliance or Ms. Romano, or that affect the fairness of this proceeding. Representation of Petitioners by Ruden McClosky Petitioners were not represented by Ruden McClosky at the time Ruden McClosky requested actual notice of any DEP agency action regarding FPUA. Petitioners were not represented by Ruden McClosky at the time Ruden McClosky requested actual notice of any DEP agency action regarding Allied. The parties stipulated that an attorney-client relationship was formed between the Petitioners and Ruden McClosky on or after January 1, 2009. No further specificity was stipulated. On February 3, 2009, Ruden McClosky sent an engagement letter to the Conservation Alliance regarding governmental and administrative challenges to the Permit Modification. The engagement was accepted by Mr. Stinnette on behalf of the Conservation Alliance on February 4, 2009. The Petition for Formal Proceedings, which named the Conservation Alliance as a party, was filed with the DEP on February 4, 2009. On February 10, 2009, Ruden McClosky sent an engagement letter to Ms. Romano regarding governmental and administrative challenges to the Permit Modification. There is no evidence that the engagement was accepted by Ms. Romano. Ms. Romano testified that she has never spoken or corresponded with anyone from Ruden McClosky, and had no knowledge that she was being represented by Ruden McClosky. Ms. Romano had no input in drafting any of the petitions filed on her behalf, and had no recollection of having ever read the petitions. The Amended Petition for Formal Proceedings, which named Ms. Romano as a party, was filed with the DEP on February 12, 2009. Both of the Ruden McClosky engagement letters reference an “Other Client” that had an interest in challenging the Permit Modification, which “Other Client” would be responsible for paying all fees and costs, and would be involved in the approval of all work performed by Ruden McClosky. The parties stipulated that the “Other Client” was Odyssey. The date of an engagement letter is not dispositive as to the date on which an attorney-client relationship is established. It is, however, evidence that can be assessed with other evidence to draw a conclusion as to the date that the relationship commenced. The preponderance of the evidence demonstrates that requests for notice made prior to January 21, 2009, regarding the FPUA operation permit and the Permit Modification that is the subject of this proceeding were made on behalf of Odyssey or Florida Tire, existing clients of Ruden McClosky. The preponderance of the evidence leads the undersigned to find that Ruden McCloskey commenced its representation of the Conservation Alliance with regard to the instant case no earlier than January 21, 2009, the date on which Ruden McClosky received notice that the Permit Modification had been issued. The preponderance of the evidence leads the undersigned to find that Ruden McCloskey commenced its representation of Ms. Romano with regard to the instant case after January 21, 2009, if at all. Filing of the Petitions The 14th day after publication of the notice of the Permit Modification fell on January 23, 2009. On February 4, 2009, the initial Petition for Formal Proceedings was filed challenging the DEP issuance of the Permit Modification. The Petition named the Conservation Alliance as a party. On February 12, 2009, an Amended Petition for Formal Proceedings was filed that, among other things, added Ms. Romano as a party. Allegations of Standing - Conservation Alliance The Conservation Alliance is a non-profit, Florida corporation incorporated in 1985. It has at least 100 members that reside in St. Lucie County. It was formed for the general purpose of protecting the “water, soil, air, native flora and fauna,” and thus the environment of St. Lucie County. In the Petition for Formal Proceedings, as it has been amended, the Conservation Alliance made specific allegations as to how the issuance of the Permit Modification may affect its substantial interests. Those allegations are related, first, to the effect of the Permit Modification on the FPUA public water supply that serves members of the Conservation Alliance and, second, to the effect of the Permit Modification on the ability of the members to recreate and enjoy the waters of St. Lucie County. FPUA Water Service In its Second Amended Petition for Formal Proceedings, the Conservation Alliance alleged that “[m]embers of the Alliance own real property or otherwise reside within the service area of FPUA, and are, in fact, serviced by FPUA.” As a result, the members “will be adversely affected by the injection of the Allied waste stream into IW-1, which is located within 500 feet of three potable water supply sources, from which . . . Romano and the Alliance?s members are provided with potable water,” resulting in “a potential for those contaminants and hazardous materials to get into Petitioners? source of potable water.” Mr. Brady, the Conservation Alliance?s president, does not receive water service from the FPUA. Mr. Brady did not know how many members of the Conservation Alliance received water service from the FPUA. Persons living in unincorporated areas of Fort Pierce do not receive potable water from the FPUA. A mailing address of “Fort Pierce” does not mean that the person lives in the incorporated City of Fort Pierce. Mr. Brady “assumed” many of the members lived in the City of Fort Pierce, but offered no admissible, non-hearsay evidence of any kind to support that assumption. Mr. Stinnette testified that he was “confident that we have members that receive water from [FPUA]” but was not able to quantify the number of said members. As with Mr. Brady, Mr. Stinnette offered no admissible, non-hearsay evidence of any kind to support his belief. Recreational and Environmental Interests In its Second Amended Petition for Formal Proceedings, the Conservation Alliance alleged that “. . . Romano and the Alliance?s members utilize and protect the waters of St. Lucie County. Petitioners? recreational and environmental interests will be adversely affected if the Allied waste stream leaves the injection well area and flows into the rivers, streams, and or ocean.” Mr. Brady understood that one member of the Conservation Alliance, George Jones, fished in the C-24 canal, although Mr. Brady had not personally fished there for 25 years. Mr. Brady otherwise provided no evidence of the extent to which members 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. There was no evidence offered as to how many of those persons were members of the Conservation Alliance, as opposed to members of other organizations or of no organization at all, or whether they were current members during the period relevant to this proceeding. Mr. Stinnette testified that the previously mentioned Mr. Jones said that he kayaked in the waters of St. Lucie County but, as to the recreational activities of other members, 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? use of the waters of St. Lucie County is hearsay. Thus, 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 is limited to the recreational use by a single member, Mr. Stinnette. Petitioner, Elaine Romano Ms. Romano is a member of the Conservation Alliance. The allegations regarding Ms. Romano?s substantial interests in this proceeding were the same as those of the Conservation Alliance as set forth above. FPUA Water Service Ms. Romano has her primary residence at 3436 Roselawn Boulevard, Fort Pierce, Florida. Her residence is not served by FPUA. Ms. Romano is the executor of the estate of her mother, Marion Scherer. The estate owns a residence at 1903 Royal Palm Drive, Fort Pierce, Florida that is currently vacant. That residence is served by FPUA. The estate is not a party to this proceeding. Recreational and Environmental Interests Ms. Romano attends certain meetings and functions of the Conservation Alliance, but offered no testimony of her use or enjoyment of any natural resources that could be affected by the Permit Modification. In that regard, her interest in this case was precipitated by a desire to support her mother?s interest in ecology.
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 Proceeding as amended. 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.
The Issue Whether General Water Use Permit (WUP) Number 20012185.000 (Permit) meets the conditions for issuance as established in Section 373.223, Florida Statutes, and Rule 40D-2.301, Florida Administrative Code, and should be issued to Farmland Hydro Limited Partnership and Frank T. Basso, Jr. and Redland Growers Exchange, Inc.
Findings Of Fact The Parties DCAP is not-for-profit corporation incorporated in the State of Florida. Behrens is the President of DCAP. See also Findings of Fact 63-77. Farmland Hydro is a Delaware Limited Partnership authorized to transact business in Florida, and is the owner of the property leased by Basso/Redland, which is the subject of this WUP. Frank T. Basso, Jr., is a third generation farmer, who operates as Redland Growers Exchange, and seeks a General WUP to authorize groundwater withdrawals for crop irrigation. The District is the administrative agency charged with the responsibility to conserve, protect, manage, and control water resources within its boundaries pursuant to Chapter 373, Florida Statutes, and the rules promulgated thereunder as Chapter 40D, Florida Administrative Code. The Proposed Water Use An Application for a General WUP was submitted by Farmland Hydro and Basso, as co-applicants, and received by the District on April 11, 2001. After receipt of additional information, the Application was deemed complete on October 22, 2001. The Applicants seek a General WUP to authorize a new water use for the irrigation of 140 acres for the production of both Spring and Fall row crops, using a seepage-with-mulch irrigation system.1 Basso plans to grow tomatoes and/or peppers in the Spring, and squash and/or cucumbers in the Fall. Crop planting for both seasons will be phased-in over a one-month period. Water allocation quantities are calculated on a weekly phase-in basis of approximately 35 acres for each planting date. The total time that the parcel will be in use for farming, to include planting and harvesting for each crop, is approximately six months per year. The subject parcel is part of a 250-acre tract known as the Brushy Creek Tract and is located in Hardee County approximately two miles south of the town of Ona; approximately two miles south of the intersection of U.S. Highway 64 and County Road 663; and is within the Southern Water Use Caution Area (SWUCA). The subject parcel currently does not contain a water well. The Brushy Creek Tract is a larger parcel of approximately 1,230 acres leased from Farmland Hydro by Redland and also by Parker Farms for cattle grazing, farming, and hunting. The subject parcel is used for cattle grazing and is surrounded by land owned by Farmland Hydro and used for either cattle grazing or agricultural row crops. Farmland Hydro also operates an additional approximately 1,941 acres of property near the subject parcel, which is used for citrus groves. Farmland Hydro has consumptive WUPs for this property. The closest existing legal user to the proposed Basso well site is another well on the Farmland Hydro property. As is generally done with vegetable crop production in Florida, vegetable crops grown on the Farmland Hydro property are grown in rotation with pasture, and have been rotated in this manner for many years. Typically, farmers have farmed a piece of land for one, two or three years and then, to avoid the buildup of insects and diseases, have allowed the land to revert to pasture and have moved on to another field for crop production. The subject parcel for which the WUP is being sought will be similarly treated. Crop rotation is an important agricultural best management practice that is used to address pest management, soil conservation, and maximizing nutrients for obtaining favorable crop production. Soil conservation is important to Basso, notwithstanding that there is a response in the Application that no approved Soil Conservation Service plan exists for the operation included in the Application. If the WUP is issued and the subject parcel is placed into crop production, another parcel of land will be taken out of crop production by Basso, resulting in the discontinuation of another permitted well. As a result, the issuance of this WUP will not result in a "water use change." Determination of Reasonable Demand/Allocated Quantities In determining whether a proposed water use is reasonable-beneficial and in the public interest, the District calculates the appropriate permit quantities for the particular water use, which is a function of demonstrated need, or demand for water; efficiency of the water treatment and distribution systems; whether water is sold or transferred to other entities; whether acceptable water can be acquired from lower quality sources; and whether conservation practices are employed. District Basis of Review (BOR), page B3-1. The reasonable need for agricultural water use is generally composed of one or more demand components, depending upon the specific agricultural use. "Typically, the reasonable need for irrigation water uses is equal to the supplemental crop requirement divided by the system efficiency or the system design capacity, whichever is less." "The supplemental crop requirement is the amount of water needed for a particular crop beyond the amount of water provided by effective rainfall." The supplemental crop requirement is generally determined by using the Agricultural Water Use Calculation Program (AGMOD) Version 2.1, which is based on the modified Blaney-Criddle method. This program takes into account site specific information such as crop type, growing period, evapotranspiration rate, soil type, rainfall, irrigation method and number of irrigated areas. "In most cases, the supplemental irrigation requirement is determined for a 2 in 10-year drought condition." The AGMOD program determines an inch-application rate which, when applied to the number of acres to be irrigated, results in a calculation of total annual average and peak monthly quantities for the proposed water use. District BOR, pages B3-4 and 3-5. See also District Water Use Design Aids, pages C4-1 through C4-7. In determining the allocated quantities, or reasonable demand for water, the District seeks to avoid both over- allocating water and under-allocating water for the specific crop intended, to ensure that the permitted amount is sufficient for the "2 in 10-year drought condition." Consequently, the allocated quantities arrived at by District staff through use of the AGMOD methodology may be different from the quantities indicated on an applicant's initial application, which are generally estimated without benefit of an agricultural water use calculation program. The AGMOD program was used to calculate water use quantities for the proposed water use. The allocated quantities for Basso's proposed use are 454,000 gallons per day (gpd) on an annual average basis and 1,241,000 gpd, as a peak month quantity. No quantities were requested or allocated for crop protection. See Finding of Fact 52. Modeling for Simulated Impacts As part of the application review process, the District evaluates potential impacts to existing legal uses of water, the water resources and environmental features that may result from the proposed groundwater withdrawals. To assist in the review process, analytical and numerical models, which incorporate best available hydrogeologic parameters for the area being considered for a permit, are used to simulate drawdowns for the withdrawal of the proposed quantities. The results of these simulations are used in the evaluation of potential impacts to assess whether the application meets the conditions for issuance. The District undertook simulation modeling of the potential effects of the proposed water withdrawals to be authorized by the permit. The allocated quantities were entered into the MODFLOW 387 groundwater flow model, which is a three- layer model developed by the U.S. Geological Survey and is the generally accepted model for this purpose. Model layers were set up to represent the surficial, intermediate, and Upper Floridan aquifers. (The Applicants seek to pump water solely from the Upper Floridan Aquifer.) There are limitations to the model in that the model assumes a homogeneous isotropic aquifer, with no preferred flow direction. In actuality, there is variability in the geology of the area. Modeling is intended to serve as a screening tool for assessing localized impacts anticipated from a proposed water use and is based upon the best available information. As distance from the proposed withdrawal site increases, the reliability of the modeling decreases, due to the variability in the geology and other parameters or boundary conditions that can affect the model. Use of the MODFLOW groundwater model allows the District to look at potential impacts at the site, and in the proximity of the site, and assists the District in assessing possible cumulative impacts associated with a proposed use. To assist in assessing potential impacts from the proposed use, a Peak Month modeling simulation was undertaken by the District, which simulates the effect of pumping the proposed Peak Month withdrawal rate of 1,241,000 gpd for 90 consecutive days, with no recharge to the aquifer systems. The model essentially presents a worst case scenario that is a more severe prediction than what is actually likely to occur from the permitted use under normal conditions. Simulating the period of greatest demand on the hydrologic system is likely to provide maximum protection to existing legal water users and the water resources. The Peak Month simulation undertaken by the District predicts drawdowns in the potentiometric surface of the Upper Floridan Aquifer of approximately 2.6 feet at the proposed withdrawal site; less than 1.4 feet at the nearest property boundary (approximately 1,250 feet from the proposed withdrawal site); and less than 1.2 feet at the nearest existing legal user (a Farmland Hydro well approximately 3,500 feet from the proposed withdrawal site). These numbers did not raise a concern for District staff. ("Potentiometric surface" is "a surface defined by the level to which water rises in an open pipe that is constructed into or all the way through an artesian aquifer. This is measured in feet relative to NGVD or sea level. The level to which water rises inside this open pipe is a function of the pressures on the water in the artesian aquifer." District BOR, page B-xii.) The Peak Month simulation predicts drawdowns in the intermediate aquifer of approximately 0.9 feet at the proposed withdrawal site, and less than 0.9 feet at the property boundary, and at the nearest existing legal user. The Peak Month simulation predicts drawdowns in the water level of the surficial aquifer (water table) of approximately 0.01 feet or less at the proposed withdrawal site, property boundary and nearest existing legal user. Based upon the Peak Month simulations, the District reasonably determined that further cumulative impact modeling was not necessary in order to assess localized cumulative impacts resulting from the proposed use. To assess regional cumulative impacts, the District evaluated Regional Observation Monitoring Program (ROMP) data and found no significant trends in withdrawals in recent years, other than a slight decline attributed to the recent drought. Conditions of Issuance of the Proposed Permit In order to obtain a water use permit, an applicant must establish that the proposed use of water is a reasonable- beneficial use, will not interfere with any existing legal use of water, and is consistent with the public interest, by providing reasonable assurance, on both an individual and cumulative basis, that the water use meets the conditions for issuance as specified in Section 373.223(1), Florida Statutes, and Rule 40D-2.301, Florida Administrative Code. A permit must be obtained from the District prior to withdrawing water, where the withdrawal is from a well having an outside diameter of six inches or more at land surface, where the annual average withdrawal from all sources is 100,000 gpd or greater, or where the total combined withdrawal capacity from all sources is greater than or equal to 1 mgd. The proposed water use falls within these parameters. Rule 40D-2.041(1)(b) and (c), Florida Administrative Code. The quantities allocated for the proposed use have been determined by the District to be necessary to fulfill a certain reasonable demand, for the reasons specified herein. To assist in assessing impacts, the District utilizes a network of ROMP wells to obtain basic groundwater monitoring data over time and to help characterize the lithology, stratigraphy, aquifer depths, water levels and, in some cases, water quality for the various water resources. Data obtained from the ROMP and other wells is compiled to ascertain aquifer characteristics within the District and is also integrated into the District's modeling efforts pertaining to proposed water uses. ROMP well No. 31 is located just off the northeast corner of the Basso site. Having a ROMP well adjacent to the Basso site increases confidence in the specific geological information being used in the groundwater model to assess potential impacts from the proposed uses. ROMP well No. 17 is located approximately 1/2 mile from DCAP member Behren's well. Data from both wells were considered in assessing potential impacts from the proposed water use. Based on available information, the possible sources of groundwater for the proposed use at the Basso site are the surficial aquifer, intermediate aquifer, and the Upper Floridan Aquifer systems. To ensure sufficient quantities of water for the proposed use and to avoid potential impacts to environmental features, such as wetlands and surface waters, the District will require the proposed use to limit withdrawals to solely the Upper Floridan Aquifer. By examining stratigraphic cross sectional information generated from the ROMP wells, particularly ROMP No. 31 well, which is in close proximity to the Basso site, District staff were able to determine, with reasonable certainty, the approximate depths of the aquifers at the Basso well site. To ensure that the well will be open solely to the Upper Floridan Aquifer, the permit requires the Basso well to have a minimum of 400 feet of casing, with an estimated well depth of 1,000 feet. Based upon available information concerning the construction of other wells in the vicinity of the proposed Basso well, the District is reasonably assured that a well cased for a minimum of 400 feet will draw water only from the Upper Floridan Aquifer and will minimize the potential for water to move between the aquifers through the well. The well construction requirements imposed for Basso's well are in line with the best available stratigraphic information and with known construction of wells in the area. By casing the well to a depth of 400 feet and due to the extremely low leakage of the intermediate confining unit, the intermediate and surficial aquifers will be buffered from impacts associated with the proposed use. The District will deny a water use permit application if the proposed withdrawal of water, together with other withdrawals, would cause an unmitigated adverse impact on a legal water withdrawal existing at the time of the application. The District considers an adverse impact "to occur when the requested withdrawal would impair the withdrawal capacity of an existing legal withdrawal to a degree that the existing withdrawal would require modification or replacement to obtain the water it was originally designed to obtain." District BOR, page B4-14. Based upon an assessment of individual and cumulative regional information, there are no existing legal uses of water that will be adversely impacted as a result of the proposed withdrawals. Based upon an assessment of individual and cumulative regional information, no quantity or quality changes that adversely impact the water resources, including both surface and groundwaters, are anticipated from the proposed withdrawals. The District requires that consideration be given to the lowest water quality available, which is acceptable for the proposed use. Lower quality water includes reclaimed water, collected stormwater, recovered agricultural tailwater, saline water or other sources. District BOR, page B4-12. For the proposed water use, there is no viable lower quality water source and no reclaimed water available near the site to use as an alternative to groundwater pumping. The Applicants are proposing to use the lowest quality water that is available. There are no known concerns regarding the quality of water in the Upper Floridan Aquifer at this location in Hardee County. Restricting the proposed water use to the Upper Floridan Aquifer will not cause water quality concerns or result in pollution to any of the aquifers. Simulated drawdowns to the Upper Floridan Aquifer of approximately 2.6 feet at the proposed withdrawal site, less than 1.4 feet at the nearest property boundary, and less than 1.2 feet at the nearest permitted well, provide reasonable assurance that adverse impacts will not occur from the proposed water use. Simulated drawdowns to the intermediate aquifer of 0.9 feet at the proposed withdrawal site, and less as the distance from the proposed withdrawal site increases, provide reasonable assurance that adverse impacts will not occur from the proposed water use. Simulated drawdowns to the surficial aquifer of 0.01 feet or less at the proposed withdrawal site, and less as the distance from the proposed withdrawal site increases, constitute a nearly undetectable impact to the surficial aquifer, which is not an adverse impact. The modeling simulations demonstrate that the proposed withdrawals will have no significant effect on the surficial aquifer and, therefore, will not cause adverse impacts to environmental features such as wetlands, lakes, streams, fish and wildlife, or other natural resources. None of the simulated drawdowns are considered to be predictions of adverse impacts, not even in the localized vicinity of the well site. Mr. Jackson explained that because the localized modeling simulations were small or insignificant and showed no adverse impacts, cumulative modeling is not considered necessary. Reasonable assurance on a cumulative basis is determined by assessing the potential localized impacts in conjunction with existing cumulative data for the region, such as the available ROMP data and hydrographs, which depict the existing regional condition, taking into account, on a cumulative basis, all existing uses as well as rainfall conditions and climate. Based on an assessment of the cumulative data and the modeling for individualized impacts, and applying professional judgment, District staff reasonably concluded that the proposed water use presents no concerns that it will cause, on either an individual or a cumulative basis, adverse impacts to the water resource or existing legal uses. Minimum flows and levels have not been established by the District for the area where the proposed use is located. (The parties stipulated that the District has not established minimum flows and levels pursuant to Section 373.042, Florida Statutes, for the Southern Water Use Caution Area (SWUCA)). Therefore, Rule 40D-2.301(1)(d), Florida Administrative Code, (requirements for minimum flows and levels), is not applicable to the proposed permit. The proposed use presents no concerns for saline water intrusion. The proposed use raises no concerns regarding causing pollution to the aquifer. There are no offsite land uses that will be adversely impacted as a result of this permit. Basso currently uses best management practices for water conservation in his ongoing farming operations, and intends to use such practices with the new farming operation authorized under the permit. In keeping with such practices, irrigation is stopped when the water reaches the end of the watering ditch. Basso uses seepage irrigation and tries to regulate the ditches so that there is a minimum, if no, runoff. Also, a watering cycle generally lasts from three to seven days before irrigation has to be resumed. Any runoff goes into "filtering ponds, before reaching ditches or creeks" in its raw content. Basso does not intend to farm during months of likely frost so no separate allocation for frost/freeze protection was requested or needed. Given these irrigation practices, water is not reasonably expected to be wasted. All necessary and feasible agricultural water conservation activities will be implemented upon issuance of the WUP. In addition, Specific Condition No. 3 of the proposed WUP requires the incorporation of best water management practices in all irrigation practices. The proposed use presents no concerns that it will otherwise be harmful to the water resource. The Applicants have met all the requirements for issuance of a WUP. Southern Water Use Caution Area The proposed water use site is located within the SWUCA. The District established the SWUCA as a means of addressing on a regional scale concerns about long-term impacts to the water resource. Water use caution areas were created in recognition of regional water concerns. There have been drought conditions in the area which have caused reduced aquifer levels. The proposed water use site is not within the "Most Impacted Area" (MIA), which is located approximately 18 miles to the west of the site in Manatee County, nor within the "East Tampa Bay Water Use Cautionary Area" (ETB WUCA), which is approximately six miles to the west of the proposed site, also in Manatee County. (The SWUCA includes the MIA and ETB WUCA.) Pending final adoption of rules for the SWUCA, the District will continue to issue WUPs for proposed water uses that meet the conditions for issuance. The District cannot treat new uses and existing renewal uses any differently when considering the issuance of a permit. Once SWUCA rules and minimum flows and levels are established, the District expects to rely on a more regional approach to address long-term cumulative impacts over the entire use caution area, instead of relying on a permit-by-permit basis to address regional concerns. Standard Condition No. 9 of the proposed WUP requires the permittee to cease or reduce withdrawals as directed by the District, if water levels in the aquifers fall below the minimum levels established by the District Governing Board. The proposed withdrawal will use a seepage with mulch irrigation method, which has a 50 percent efficiency level. See footnote 1. This is the minimum efficiency level currently required for agricultural WUPs within the SWUCA, which approve the use of this irrigation method. As SWUCA rules come into effect, a higher percentage efficiency level probably will be required, as is now required in the Eastern Tampa Bay Water Use Caution Area and also in the Highlands Ridge Water Use Caution Area. Consequently, Standard Condition No. 11 of the proposed WUP requires that, when SWUCA rules are implemented, the permittee must comply with any higher efficiency level or other special regulation that may be required for the SWUCA area. DCAP's Challenge to the Proposed WUP DCAP does not keep official membership records. It does not maintain any list of current members. According to Behrens, there are five members of the board of directors. DCAP does not hold corporate meetings, annual meetings or maintain corporate records. Members do not meet. There are no means to document the existence of members for this organization. Behrens is a member of DCAP. He has owned five acres adjoining the west side of Horse Creek (in DeSoto County) since 1985. Behrens complains that the District does not look at the cumulative effect on his well and other people he knows, such as George Chase. Behrens is concerned with any lowering of the water level in the area, including Horse Creek. He believes that approval of wells in the area, including the proposed well, is the straw that is breaking the camel's back. Mr. Chase shares this view. Behrens relies on an artesian free-flowing, two-inch diameter well, for domestic water use, located in the intermediate aquifer, approximately 150 feet deep. (Behrens' well is approximately 18-20 miles from the proposed Basso well.) For most of the time he has lived there, the well had an electric pump for obtaining water. Approximately one year ago, the pump went bad, and a replacement system has not been installed. Currently, Behrens has no pump on the well, and in dry periods, has to obtain water for domestic uses from nearby Horse Creek, which is low during the dry season. (Behrens depends on Horse Creek to pursue his recreation, wildlife, and aesthetic values.) Having a flowing artesian well will enable him to obtain water from the well without having to install an electrical pump, a situation which is desired by Behrens, in part, because the property is in a flood plain and experiences frequent flooding and electrical outages. Not all artesian wells flow. Artesian wells are completed into confined aquifers in which the water in a tightly cased well, will rise to a level above the formation being measured. Water would have to rise above the land surface to be a flowing well. For a well to be artesian, the well must be under confined pressure. For a well drawing water from a confined aquifer, such as the intermediate or the Upper Floridan Aquifer systems, the measured water level in the well is a reflection of the amount of potentiometric pressure in the well. This level can be affected just as much by the amount of recharge as it can by the amount of water withdrawals. There is no evidence that the proposed water use will adversely impact the flowing nature of either Behrens' or Chase's well. The evidence demonstrates that the proposed water use will not adversely impact Behrens' well. George Chase is a member of DCAP. Mr. Chase lives in Arcadia, DeSoto County, Florida. His property is adjacent to the Peace River. Mr. Chase's well is a two-inch diameter well, believed to be about 150 feet deep and equipped with a 12-volt DC solar-powered pump. Mr. Chase has in the past relied on artesian pressure within the confined intermediate aquifer to supply water to his solar-powered home. The solar-powered pump assists in supplying water to the home. In recent years, Mr. Chase has experienced low water pressure in his well. In Spring 2000, Mr. Chase contacted the District to complain that when an adjacent citrus grove was irrigating the groves, it appeared to affect the water level in his well such that the well's ability to flow was impacted. (According to Mr. Chase, his neighbors have had problems obtaining sufficient water from their wells and reaching water with standard pumps.) This citrus grove is an existing legal user of water that pre-existed Mr. Chase's well. In recent years, numerous domestic wells have been constructed in the vicinity of the Chase home that are large diameter wells utilizing submersible pumps with 110-volt AC power. These wells are more efficient at producing water than the type of well and pump being used by Mr. Chase, are located within a few hundred feet of Mr. Chase's well, and are open to the intermediate aquifer as is the Chase well. Based upon the District's experience in other areas, where there is a cluster of domestic wells drawing from the same intermediate aquifer, such adjacent wells have a much greater impact on each other than do other more distant wells, such as the previously discussed citrus irrigation wells, that are open solely to the confined Upper Floridan Aquifer System. This conclusion is based upon monitoring of the ROMP sites in the affected areas. Mr. Chase's well is approximately ten miles from the proposed withdrawal site. There is no basis to conclude that the proposed water use will cause any adverse impacts to Mr. Chase's well. DCAP members' interests are not affected any differently by the proposed use than are the interests of the general public. DCAP has produced no evidence to support its assertion that the issuance of this permit will result in lowered water levels in the Horse Creek and Peace River or other surface waters. DCAP has produced no evidence to support its assertion that the permit will cause adverse impacts to surface water flows or surface waters or to environmental features such as vegetation, fish, and wildlife. DCAP has produced no evidence that its substantial interests are affected by the proposed agency action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Southwest Florida Water Management District enter a final order: Determining that Farmland Hydro Limited Partnership and Frank T. Basso, Jr. and Redland Growers Exchange, Inc., have satisfied the requirements of Section 373.223, Florida Statutes, and Rule 40D-2.301, Florida Administrative Code, regarding conditions for issuance of WUPs;3 Issuing proposed General Water Use Permit No. 20012185.000, as set forth in District Exhibit No. 4; and Finding that DCAP lacks standing to challenge the issuance of the permit. DONE AND ENTERED this 3rd day of June, 2002, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS 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 3rd day of June, 2002.
Findings Of Fact Application No. 76-00493 is for an existing consumptive use permit for five wells located in the Peace River Basin, Polk County on 608.6 acres. The permit seeks a total average annual withdrawal of 7.2 million gallons per day and a maximum daily withdrawal of 14.97 million gallons per day. Ninety-five percent of the water withdrawal will be used for industrial purposes and five percent will be used for irrigation. The Southwest Florida Water Management District's staff recommends issuance of the permit with the following conditions: That the applicant shall install totalizing flow meters of the propeller-driven type on all withdrawal points covered by the application except that well located at Latitude 28 degrees 03' 13", Longitude 81 degrees 47' 54". That the applicant shall record the pumpage from the above meters on a weekly basis and submit a record of that pumpage quarterly to the district beginning January 15, 1977. That the permit shall expire on December 31, 1980
Recommendation It is hereby RECOMMENDED that a consumptive use permit be granted in the amounts applied for in Application No. 76-00493 subject to the conditions set forth in paragraph 2 above. ENTERED this 13th day of October, 1976, in Tallahassee, Florida. CHRIS H. BENTLEY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Southwest Florida Water Management District Post Office Box 457 Brooksville, Florida 33512 Coca Cola Company Post Office Box 247 Auburndale, Florida 33823
Findings Of Fact Bayfront commenced construction of the biological waste incinerator here at issue prior to March 21, 1992, the effective date of the moratorium on construction of biological waste incinerators and was exempt from that moratorium. An inspection of the premises on April 9, 1992, (exhibit 5) showed substantial work had been accomplished and the inspector concluded, and DEP's legal counsel concurred, that in order to have achieved the construction progress shown on April 9, 1992, the work had to have been commenced prior to March 21, 1992. Further, a building permit to renovate the building into which the waste incinerator was placed was issued November 12, 1991, (exhibit 7) and a building permit to install a waste incinerator was issued March 4, 1992, (exhibit 6). No contradictory evidence was submitted by Petitioner. Respondent's witnesses testified without contradiction that Bayfront's application for an operation permit was complete in all respects, including certification by a professional engineer; that all test results showed the emissions into the atmosphere were within the prescribed standards; that certain conditions contained in the construction permit as a result of the settlement agreement resolving the challenge to the issuance of the construction permit are contained in the operation permit; that those conditions exceed the conditions required by the rules for incinerators; and that Bayfront affirmatively provided the Department with reasonable assurance based on plans, test results, installation of pollution control equipment, or other information that the operation of the incinerator will not discharge, emit, or cause pollution in contravention of DEP's standards as contained in Rule 17-4.070(1), Florida Administrative Code. This testimony is accepted as factual. The draft permit authorizes Bayfront to burn a maximum of fifteen hundred pounds per hour of waste. Each time a test run is conducted to check the emissions, the pounds of waste burned per hour during the test establishes an upper limit on the rate of burning waste. As explained by James L. McDonald, the engineer processing air pollution applications for the Department at Transcript p. 50-51: The construction application asked for a permit at fifteen hundred pounds per hour. So the construction permit is -- the condition that we would want, the Department would normally want the test within ten percent of that fifteen hundred pounds an hour in order to go ahead and issue, if its in total compliance, to issue an operating permit at fifteen hundred pounds. Since the test came in at a reduced rate, below the ten percent, then that's why in the operating permit condition twenty-one says you're limited to the rate that we're, the test was conducted. [sic] Now, also, its interesting to note that in their test, if you look at their runs two and three -- because there are rules that say the Department could accept two runs out of three if a condition occurred that was out of their control -- if your average runs two and three, they would average within ten percent of fifteen hundred. So, as a permit processor, it even gave me some reasonable assurance that they could probably comply with the fifteen hundred. But, since the test of all three runs came in as an average of twelve fifty-one, then the operating permit included that twelve fiftyone. And like the real world out there, just like power plants, when it comes time for their annual testing, if they are at half speed, their business is down, it allows them to test at half speed. We won't require them to go up to full speed. They can test at half speed. But then they are limited there. And if they go above it at a later date they would have to retest. So they can work their way back up to where the Department has reasonable assurance that the upper limit of fifteen hundred pounds -- that's where later in condition twenty-one of the operating permit it says but in no case shall the maximum permit or burning rate of fifteen hundred pounds per hour be exceeded. Petitioner's second two grounds for challenging the issuance of the operation permit was answered by McDonald's testimony, above quoted, and this evidence was not rebutted by Petitioner. The primary thrust of the evidence presented by Petitioner was that Bayfront had somehow misled the City of St. Petersburg regarding the operation of the incinerator and had not complied with all of the City's requirements in other respects, ergo, Bayfront could not be relied on to comply with the conditions in the operation permit. This evidence is irrelevant to the determination of whether or not the operation of the incinerator complies with all of the Department rules. The conditions of the operating permit require Bayfront to submit periodic reports to the Department from which the Department can determine whether the conditions in the permit are being complied with. Furthermore, the Department requires the permittee to notify the Pinellas County Department of Environmental Management at least fifteen days prior to the date on which each formal compliance test is to begin (Permit Condition No. 22) to allow them to witness the test, if desired. The construction permit, complying with the settlement agreement, required Bayfront to adhere to more frequent testing and more extensive testing then is required by the rules for operating biological waste incinerators. All of the tests and reports submitted by Bayfront on the operation of this incinerator met all of the requirements in the construction permit and the draft operation permit.
Recommendation It is RECOMMENDED that Bayfront Medical Center be issued Permit No. AO52- 224337 to operate a biological waste incinerator at Fifth Avenue South and Eighth Street, St. Petersburg, Florida. DONE AND ENTERED this 16th day of November 1993 in Tallahassee, Leon County, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of November 1993. COPIES FURNISHED: Adrian W. Helm, Esquire 925 14th Avenue North St. Petersburg, Florida 33712 Daniel N. Burton, Esquire Thomas K. Maurer, Esquire Terri L. Gillis-Tucker, Esquire Foley and Lardner 111 North Orange Avenue, Suite 1800 Orlando, Florida 32801 W. Douglas Beason, Esquire Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Virginia B. Wetherell, Secretary Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante, General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue Whether the finger pier portion of Respondent Raab's dock creates a navigational hazard. The resolution of that issue will determine whether the dock qualifies for an exemption from an environmental resource permit under Rule 40E-4.051(3)(b), Florida Administrative Code, and Section 403.813, Florida Statutes.
Findings Of Fact DEP has the authority to regulate the construction of docks in jurisdictional wetlands and other waters of the State of Florida and on state submerged lands under Chapters 253, 373, and 403, Florida Statutes, and Chapters 62-330 (which adopts Chapter 40E-4) and 18-21, Florida Administrative Code. The Association is a residential community located in Sewall's Point, Martin County, Florida. All lots within the community abut navigable channels which provide ingress and egress to the ICW. These channels converge so that there is only one channel that connects to the ICW. Most of the residents of the community have large vessels that routinely navigate the channels within the community. At the time of the formal hearing, many of the vessels owned by residents of the community had drafts of four feet and at least two had drafts of five feet. In 1997, Mr. Raab purchased a residence in the Association that is located very close to where the channel meets the ICW. Because of that location, practically all residents of the Association have to pass in front of Mr. Raab's property when going into or returning from the ICW. The property at issue is located at 22 Simara Street, Sewalls Point, Martin County, Florida. The dock at issue in this proceeding is subject to DEP's regulatory authority. When Mr. Raab purchased this property in 1997, there was an existing marginal dock parallel to the bulk-head. Mr. Raab subsequently sought and received approval from DEP to demolish the existing marginal dock and replace it with a virtually identical structure. The existence and configuration of the marginal dock is not at issue in this proceeding. Mr. Raab thereafter sought to modify his approved marginal dock by adding a finger pier which extended into the channel 36 feet so he could dock his vessel perpendicular to the bulkhead. Mr. Raab's plan also called for the construction of two pilings 12 feet from the end of the finger pier. Mr. Raab had, as of the time of the formal hearing, re-constructed the marginal dock and had constructed the finger pier. 3/ The two additional pilings had not been constructed at the time of the formal hearing. After reviewing the modified project, DEP determined that the project was exempt from the need for an environmental resource permit under Rule 40E-4.051(3)(b), Florida Administrative Code, and Section 403.813, Florida Statutes. DEP also authorized Mr. Raab to use state-owned submerged lands if necessary. The Association thereafter timely challenged DEP's determination that the finger pier portion of the project (and the two additional pilings) did not require an environmental resource permit. There was a conflict in the evidence as to the functional width of the channel in front of Mr. Raab's property. 4/ Mr. Holly testified on behalf of the Association that the functional width of the channel was 83 feet. Mr. Lidberg, testifying on behalf of Mr. Raab, testified that the functional width was 101 feet. This conflict is resolved by finding that the functional width of the channel in front of the Raab property is 101 feet. 5/ The prevailing winds in the area in front of Mr. Raabb's dock blow into the dock. The depth of the water in the channels is influenced by tides. The principal reason Mr. Raab wants the finger pier is so that he can moor his boat with the bow to the prevailing winds in times of high winds. At the time of the formal hearing, Mr. Raab owned a vessel with an overall length of 44 feet. There was a conflict in the evidence as to whether Mr. Raab's finger pier and the two pilings that have been authorized, but not constructed, constitute a hazard to navigation. 6/ Based on the totality of the evidence, it is found that these structures do not create a navigational hazard. 7/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP enter a final order dismissing the Association's challenge to the determination that Mr. Raab's project qualifies for an exemption from an environmental resource permit. DONE AND ENTERED this 1st day of March, 2000, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 1st day of March, 2000.
Findings Of Fact The CLDD was established pursuant to Chapter 298, Florida Statutes, on August 4, 1967. Its purpose was to "reclaim" or render the land within its boundaries usable for agricultural purposes. The land comprising the CLDD consists of approximately 3,500 acres in Lee County, mostly planted in citrus trees. Pursuant to the requirements of Chapter 298, Florida Statutes, a "Plan of Reclamation" was prepared by consulting engineers for the CLDD's Board of Supervisors in August, 1967. That plan contains provisions for reclaiming lands within the CLDD's boundaries and for managing and controlling surface water within CLDD. The method of water control outlined in the 1967 reclamation plan included a dike and ditch system around the boundaries of CLDD with a series of interior canals to carry excess water away from the citrus trees. The land in the north part of he CLDD is higher than the south and water generally, naturally flows from north to south. The interior canals were designed to carry water in accordance with existing contours of the land and eventually discharge excess surface water to the rim ditches on the north and east sides of Spoil Area "M," which is south of the CLDD and which was then owned by the C&SFFCD, the predecessor agency to SFWMD. The system of drainage delineated in that 1967 plan, inaugurated pursuant to Chapter 298, Florida Statutes, was put into effect substantially as described therein. CLDD's 1967 plan was altered somewhat because of an agreement entered into on September 30, 1971, between the CLDD and neighboring landowner Kenneth Daniels. Pursuant to that agreement, the two parties agreed to extend the dike on the west side of the CLDD property and construct a ditch from a point 50 feet north of the northwest corner of the Petitioner Mellor's property, which new ditch was to run southwest across the Daniels' property and connect with Spanish Creek. That ditch or canal would thus connect the western rim ditch of the SFWMD's Spoil Area "M" with Spanish Creek and have the result that surface waters could be discharged from CLDD lands through the western rim ditch of Spoil Area "M" thence through the "Daniels' Ditch" finally discharging into the lower reaches of Spanish Creek. (see Exhibits 1 and 11) Because the western side or western rim canal of the SFWMD's Spoil Area "M" had not been used under the original plan of reclamation approved by the C&SFFCD, CLDD sought permission from C&SFFCD to use this western rim canal for the purpose stated pursuant to the agreement with Daniels. Thus, CLDD's proposed use of the rim canal of Spoil Area "M" would be confined to the western, northern and eastern perimeter canals and not the southern boundary canal. All affected landowners, Kenneth Daniels as well a Jake and Lilly Lee, agreed to those proposed installations and uses. The resulting agreement between CLDD and C&SFFCD was entered into on October 12, 1972, and describes the flood control District land to be used by CLDD as a 100 foot wide strip running along the west, north and east sides of Spoil Area "M," also know as "Aspic." This 100 foot wide strip of land running thusly is co-extensive with the rim ditch of Spoil Area "M." The CLDD was mandated by this agreement to install 72- inch pipes in the rim ditch at the southwest corner of the spoil area, just north of the Mellor property, giving a point of discharge from the western rim ditch into the Daniels' Ditch with similar pipes connecting that Daniels' Ditch with Spanish Creek, such that the canal between these two points could carry water from the west rim ditch to Spanish Creek. The easement incorporated in this agreement was to last for five years with an option for a five-year renewal, which option was exercised. At the end of this 10-year period, SFWMD, successor to C&SFFCD, notified CLDD that because its statutory authority had since changed, the easement could not be renewed and that CLDD would have to seek the subject permit so as to be authorized to use works and lands of the District. The requirements to be met by an applicant for a right-of-way permit such as this one are set out in Rule 40E-6.301, Florida Administrative Code, and SFWMD's permitting information manual, Vol. V, Criteria Manual for Use of Works of the District, July, 1981, which is incorporated by reference in that rule. In that connection, the permit at issue, if granted, would not cause an interference with the "works" of the District, that is dikes, ditches, flood control structures arid drainage structures because it would merely renew the pre-existing authorized use. The permit will not be inconsistent with an comprehensive water use plan developed by the District. Further, the permit applicant owns or leases the land adjacent to the portion of the "works of the District" involved herein that is the east, north and west rim ditches of Spoil Area "M," the Daniels' Ditch and the pipes at either end of it coupled with the water control structures at the southeast corner and southwest corners of Spoil Area "M," which control water entering the south rim ditch. CLDD has a surface water management permit, issued in August, 1980, which is a prerequisite to the granting of the subject right-of-way permit. It remains in full force and effect. That surface water management permit authorizes "operation of a water management system serving 3,642 acres of agricultural lands by a network of canals and control structures, with a perimeter dike and canal discharging into Cypress Creek." The "surface permit" authorized the system of drainage and discharge in existence at the time of its issuance, May 8, 1980. The system of drainage, at the day of the hearing, consisted of the same basic water flow and discharge pattern that existed for approximately 10 years, and this permit would allow that to be continued, thus, there will not be any additional effect on environmentally sensitive lands occasioned by an issuance of the subject right-of-way permit. The surface water management permit, by its terms, refers initially to the operation of a water management system" . . . discharging into Cypress Creek." The reference to "Cypress Creek" was an administrative error. The express language on the face of the permit authorization incorporates by reference the application, including all plans and specifications attached thereto, as addressed by the staff report, and those materials, including the staff report, are a part of the permit. The complete permit, including all those documents incorporated by reference, makes it clear that the authorization of the surface water management permit was that the system of drainage in existence at the time of permit issuance (1980) was that which was being approved, and that included discharge to Spanish Creek and not Cypress Creek. Discharge of water to Cypress Creek as an alternative was never recommended or authorized by that surface water management permit. This is clearly the intent expressed in the permit in view of the language contained in a special condition of that surface water management permit imposed by the SFWMD as a condition for issuance which stated as follows: Within 45 days of the issuance of this permit the permittee shall submit for staff approval a proposal and schedule for the elimination of the adverse impacts being created by the operation of the permittee's water management system, which can be legally and physically accomplished by the permittee. Adverse impacts are considered herein to be reduced flows to Spanish Creek and increased flows to Cypress Creek. Thus, it is obvious that the authorization of the surface water management permit was designed to provide for discharge into Spanish Creek and to enhance the flows to Spanish Creek pursuant to a required proposal which the permittee submitted to SFWMD. Thus, the right-of-way permit applied for herein is consistent with the valid surface water management permit held by the permit applicant in this proceeding. Petitioners William H. and Patricia H. Mellor are co-owners of parcels of property lying some distance south of Spoil Area "4" in the vicinity of the Caloosahatchee River. This property does not abut the spoil area at any point. Spanish Creek does cross their property several thousand feet south of the south boundary of the spoil area. In the past, particularly in 1982, water flowing from the south rim ditch of the spoil area through a break in the dike of that south rim ditch, has flowed through a ditch known as Dry Creek in a generally southerly direction under S.R. 78 and has washed out an access road constructed by William Mellor which leads from Highway 78 to his property. He had this washout repaired at his own expense in 1982. The washout was caused by water from CLDD flowing into the south rim canal of Spoil Area "M," that is, the ditch that traverses (and defines) the southerly boundary of the spoil area. Mr. Mellor admitted, however, that SFWMD had at least partially plugged the opening in the south rim ditch which had allowed flow down the Dry Creek ditch and wash out his road. If closed water control structures are maintained at the southwest and southeast corners of the spoil area ditches, then no water could flow into the south rim canal and no such injury could again be caused. Petitioner's Jim English and Patricia Mellor are co-owners of a 45- acre parcel of land located in the southwest corner of Spoil Area "M." The five acres forming the extreme southwest corner of the spoil area do not belong to these Petitioners, but are owned by one Lynwood Brown, who is not a party to this proceeding. The English/Mellor property forms a part of the spoil area, but does not adjoin or constitute any part of the spoil area which is sought to be used by CLDD through the proposed right-of-way use permit (as clarified by CLDD's stipulation). The south rim ditch, either part of, or adjoined by their property, has been used for water storage in the past (they maintain illegally) 1/ Mr. Tom Pancoast has observed Spanish Creek frequently over a nine- year period starting in approximately 1973. He has often used those waters during that period for fishing. During the early years of his use and observation of Spanish Creek, the water flowed out of Spanish Creek into the Caloosahatchee River. Beginning in about 1976, the water appeared to be flowing in the opposite direction, from the river into Spanish Creek. Contemporaneous with this hydrologic change, the creek has become increasingly characterized by siltation and hyacinth growth. Mr. William Mellor owns property along the course of Spanish Creek. He has used the stream for recreational purposes, picnicking where the stream traverses his property. In recent years there has occurred a marked increase in the growth or profusion of aquatic plants of unidentified types in the creek, reduced clarity and reduced flows or volumes of water in the creek. Witness English has made a similar observation. Witness James English has a substantial degree of training by formal education and experience in water management and drainage practices and methods, particularly as they relate to citrus grove development and management in southwest Florida. Mr. English has observed Spanish Creek regularly for most of his life, including the region of its headwaters in the "Cow Prairie Cypress," a remnant wetland cypress strand lying within the CLDD immediately north of Soil Area "M." The chief adverse impact of the CLDD water management system is reduced flow to Spanish Creek, especially its upper reaches since the advent of the "Daniels' Ditch" as a drainage route and discharge point into lower Spanish Creek. However, the only special condition on the issuance of the surface water management permit approving CLDD's extant water management system was the requirement that CLDD should submit a plan for eliminating that adverse effect, which it did (as Petitioner English admits). Beyond the submission of such a plan, no concrete action designed to restore historic flows to Spanish Creek has yet begun, however. The restoration of historic flows, adequate in volume and quality, to the entire creek system would require discharging water from CLDD's system to the Cow Prairie Cypress area at the headwaters of the creek rather than substantially further downstream at the present Daniels' Ditch site. The Petitioners' complaints (aside from the issue of adequacy of flows in Spanish Creek), although meritorious, are, because of stipulations asserted by CLDD during the course of this proceeding, now rendered moot. CLDD stipulated that it only seeks a permit to use the west, north and eastern spoil area ditches. It does not seek and stipulated that it will not use, at any time, the south rim ditch and will maintain water control structures so to block water from entering that ditch. This will alleviate the problem of potential storage of water on Petitioners English and Patricia Mellor's property and the erosion problem on Petitioners William and Patricia Mellor's property south of the spoil area. It was thus established that the issuance of the right-of-way permit will not cause the injuries these Petitioners have suffered in the past because of use of the south rim ditch for water drainage and storage.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence in the record and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED: That the South Florida Water Management District grant the County Line Drainage District's application for a permit for utilization of works and lands of the District. Subject to the following special condition: Issuance of this right-of-way permit does not relieve the Respondent CLDD from the responsibility of complying with special condition number 1 of the surface water management permit number 36-00184-S. Respondent CLDD shall, within 30 days of date of permitting, submit a design to the satisfaction of the SFWMD staff which will prevent the ability of CLDD to discharge to the southern rim ditch, described above. DONE and ENTERED this 29th day of September, 1983, in Tallahassee, Florida. P. MICHAEL RUFF 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 29th day of September, 1983.
Findings Of Fact At all times pertinent to the issues herein, Respondent, Cargill, a Delaware corporation authorized to do business in Florida which owned and operated a phosphate mine near Fort Meade, located in Polk County Florida. Petitioner, Gloria Elder, owns residential property adjoining the Fort Meade Mine on which she maintains an individual water well for domestic and other purposes. The Respondent, District, has the responsibility for regulating the consumption and conservation of ground and surface water within its jurisdictional limits, including the well in question. For a period prior to December, 1990, Cargill had been operating under consumptive use permit No. 202297.04, issued by the District, which provided for average daily withdrawals of 12.0 MGD from wells on its property. In addition to the 12.0 MGD, Cargill also was utilizing an additional 3.3 MGD for mine pit and surficial aquifer dewatering activities which did not have to be reflected in the permit but which were lawful uses. In December, 1990, Cargill submitted its application to renew the existing water use permit with a modification including the 3.3 MGD previously being used but not officially permitted. No additional water would be drawn from the permitted wells as the newly applied for 15.3 MGD was the total of the 12 MGD and 3.3 MGD previously permitted and lawfully used. After reviewing the additional information requested of Cargill pertaining to this application, the District published its Notice of Proposed Agency Action for approval of the permit. The proposed permit authorizes withdrawal of the amount requested in the application, 15.3 MGD, the exact same amount actually withdrawn under the prior permit. As a part of the proposed permit the District imposed two special conditions. These conditions, 12 and 13, require Cargill to conduct its dewatering activities no closer than 1,500 feet to any property boundary, wetlands, or water body that will not be mined or, in the alternative, to mitigate pursuant to conditions 12 and 13 any activities conducted within the 1,500 foot setback. There are no reasonable alternatives to Cargill's request. The mining process in use here utilizes a water wash of gravel-size phosphate ore particles out of accompanying sand and clay. The water used for this purpose is recycled and returned to the washer for reuse. The resulting phosphate ore mix, matrix, is transported with water in slurry form to the refining plant. This system in the standard for phosphate mining in the United States. Once at the plant, the slurry is passed through an amine flotation process where the sand and phosphates are separated. This process requires clean water with a constant Ph balance and temperature which can be retrieved only from deep wells. Even though the permit applied for here calls for an average daily withdrawal of 15.3 MGD, typically the Cargill operation requires about 10.08 MGD from deep wells. This is a relatively standard figure within the industry. Approximately 92 percent of the water used at the site in issue is recycled. However, recycled water is not an acceptable substitute for deep well water because it contains matters which interfere with the ability of the chemical reagents utilized in the process to react with the phosphate rock. Therefore, the quantity sought is necessary and will support a reasonable, complete mining operation at the site. The Cargill operation is accompanied by a strenuous reclamation operation. Land previously mined near the Petitioner's property has been reclaimed, contoured, re-grassed and re-vegetated. This project was completed in 1990. No evidence was introduced showing that Cargill's operation had any adverse effect on the Elders' well. Water samples were taken from that well at the Petitioner's request in May, 1991 in conjunction with the investigation into a previous, unrelated complaint. These samples were submitted to an independent laboratory for analysis which clearly demonstrated that the minerals and other compounds in the water from the Petitioner's well were in amounts well below the detection level for each. Only the iron level appeared elevated, and this might be the result of deterioration of the 18 year old black iron pipe casing in the well. Another possible explanation is the fact that iron is a common compound in that part of the state. In any case, the installation of a water softener would remove the iron, and there is no indication the water would have any unacceptable ecological or environmental impacts in the area either on or off the site. No other residents in the area have complained of water quality problems. Petitioner claims not only that Cargill's operation would demean her water quality but also that its withdrawal will cause a draw down in the water level in her well. This second matter was tested by the District using the McDonald-Haurbaugh MODFLOW model which is well recognized and accepted within the groundwater community. The model was applied to the surficial, intermediate, and upper Floridan aquifers and indicated the draw down at the property boundary would be less than one foot in the surficial aquifer and less than four feet in the intermediate aquifer. The model also showed the draw down at the Petitioner's well would be less than three feet, which is well within the five foot criteria for issuance of a consumptive use permit under the appropriate District rules. This evidence was not contradicted by any evidence of record by Petitioner. All indications are that the water use proposed is both reasonable and beneficial, is consistent with the public interest, and will not interfere with any existing legal use of water.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that WUP Permit No. 202297.05 be renewed as modified to reflect approval of 15.3 MGD average daily withdrawal. Jurisdiction will remain with the Hearing Officer for the limited purpose of evaluating the propriety of an assessment of attorney's fees and costs against the Petitioner and the amount thereof. RECOMMENDED this 29th day of April, 1993, 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 29th day of April, 1993. COPIES FURNISHED: Joseph N. Baron, Esquire 3375-A U.S. Highway 98 South Lakeland, Florida 33803 Rory C. Ryan, Esquire 200 South Orange Avenue Suite 2600 Post office Box 1526 Orlando, Florida 32801 Martin D. Hernandez, Esquire Richard Tschantz, Esquire 2379 Broad Street Brooksville, Florida 34609 Peter G. Hubbell Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Respondent owns real property located in Township 2 North, Range 7 East, Section 32, in Madison County, Florida, that has surface water flowing through it and is encompassed within what is defined as "wetlands." Respondent is in control and possession of the property in question and all work on the property that is material to this proceeding is under the control or direction of the Respondent. There were access roads on the property as early as 1973 as reflected by Respondent's exhibit 2, a 1973 aerial photograph, but the width of the roads or the existence of ditches or culverts cannot be determined from the photograph. Petitioner's exhibit 2, a 1981 aerial photograph, shows the roads still in existence in 1981 but the width of the roads or existence of ditches or culverts cannot be determined from the photograph. Sometime before the Respondent purchased the property and began construction to expand the roads, ditches and culverts were in place; however, there was no evidence as to when the ditches and culverts came to be in place. A 1976 survey of the property reflects 60 foot roads which were to provide access to platted but unrecorded lots. These roads had not been constructed when Respondent purchased the property or began construction to expand the roads. The newly constructed portions of the road indicates an attempt to build the roads in accordance with the 1976 survey. The previously existing roads attempted to follow the natural contour of the land and as a result were not always straight, and only had a negligible effect on the flow or storage of surface water in regard to the property. Sometime around October 1987, Respondent began to rebuild and construct roads on the property by straightening existing curves, removing fill material from adjacent wetlands to widen and heighten the existing roadbed or construct a new roadbed, and to increase the depth and width of existing ditches or dig new ditches. The initial portion of the existing road providing access to the property from the county graded road has been substantially rebuilt with portion of the roadbed being 40 to 43 feet wide. Ditches along this portion of the roadbed have had their width increased up to 14 feet and their depth increased up to 6 and 8 feet. Other portions of the road has been expanded beyond the previously existing roadbed by increasing the width and height of the roadbed. The increased size of the ditches and the expanded roadbed has increased the interception of surface water above that already being intercepted by the previous roadbed and ditches and, as a result, there is an increased amount of surface water impounded or obstructed. The effect is that surface water is removed from Respondent's property at a faster rate than before road construction began and, as a result, sheet flow of surface water is decreased which diminishes the storage of surface water on the property. Although new culverts were installed during road construction, there was insufficient evidence to show that these new culverts were in addition to the culverts already in place or if they replaced old culverts. There was insufficient evidence to show that the new culverts allowed water to flow in a different direction or be removed from the property at a faster rate than before or if they impounded or obstructed surface water more so than before. The previously existing roads had sufficiently served an earlier timber harvest on the property and, by Respondent's own testimony, were sufficient for his ongoing hog and goat operation. The extensive rebuilding and constructing of roads in this case was neither necessary nor a customary practice for construction of farm access roads in this area. Respondent is engaged in the occupation of agriculture in that he has a bona fide hog and goat operation. However, Respondent's silviculture occupation is somewhat limited in that he is presently harvesting the timber but shows no indication of replanting or continuing the forestry operation upon completing the present harvesting operation. The extensive rebuilding and constructing of roads in this case goes beyond what is necessary or is the customary practice in the area for a hog or goat operation or forestry operation such as Respondent's and is inconsistent with this type of agriculture or silviculture occupation. Respondent has never applied for nor received a surface water management permit from the Petitioner even though the Petitioner has informed Respondent that a permit was required for the work being done on his property. The present alteration of the topography of the land by Respondent has obstructed and impounded surface water in such a fashion that the interruption of the sheet flow of surface water has been increased, causing the storage of surface water on the property to be diminished. At the present time, Respondent has been enjoined by the Circuit Court of Madison County, Florida, from any further activity on this project. However, should Respondent be allowed to complete this project, it is evident that the sole and predominant purpose would be to impound and obstruct the sheet flow of surface water and diminish the storage of surface water on the property in question.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Petitioner, Suwannee River Management District, enter a Final Order requiring Respondent, Norman Leonard, to: (a) remove all unauthorized fill material placed within jurisdictional wetlands and return those areas to predevelopment grades and revegetate with naturally occurring local wetlands species to prevent erosion; (b) back fill excavated swale ditches, return road beds and excavated ditches to predevelopment condition and grades and seed disturbed non-wetland areas with a 50:50 mix of bahia and rye grass and; (c) refrain from any other development until and unless a required permit is obtained for such development. Respectfully submitted and entered this 13th day of February, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-1445 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 in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner 1. Adopted in Finding of Fact 1. 2.-3. Adopted in Finding of Fact 2. 4.-7. Are unnecessary findings for this Recommended Order. Adopted in Finding of Fact 18. Adopted in Finding of Fact 19. Adopted in Finding of Fact 10. Adopted in Finding of Fact 11. Subordinate to the facts actually found in this Recommended Order. Adopted in Finding of Fact 11. Adopted in Finding of Fact 12. Rejected as conclusions of law. Adopted in Findings of Fact 3 and 4. Adopted in Finding of Fact 8. Adopted in Finding of Fact 9. Adopted in Finding of Fact 9. Adopted in Finding of Fact 8. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Adopted in Finding of Fact 6. Adopted in Finding of Fact 10. Adopted in Findings of Fact 15 and 17. 26.-29. Adopted in Finding of Fact 12. 30. Adopted in Finding of Fact 13. 31.-32. Subordinate to facts actually found in this Recommended Order. Adopted in Finding of Fact 12. Adopted in Finding of Fact 16. 35.-38. Subordinate to facts actually found in this Recommended Order. 39.-42. Rejected as not being relevant or material. Specific Rulings on Proposed Findings of Fact Submitted by Respondent 1. The first paragraph adopted in Finding of Fact 16. The balance is rejected as a conclusion of law. 2.-3. Rejected as not being relevant or material. Not a finding of fact but a statement of testimony. However, it is subordinate to facts actually found in this Recommended Order. Rejected as not supported by substantial competent evidence in the record. The more credible evidence is contrary to this finding. COPIES FURNISHED: Janice F. Baker, Esquire Post Office Box 1029 Lake City, Florida 32056-1029 Norman Leonard, Pro Se Route 2, Box 172-D Live Oak, Florida 32060 Donald O. Morgan Executive Director Suwannee River Water Management District Route 3, Box 64 Live Oak, Florida Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issues are whether the proposed amendment to Rule 40E- 2.041(1), Florida Administrative Code, exceeds the agency's grant of rulemaking authority; enlarges, modifies, or contravenes the specific law implemented; or is vague, fails to establish adequate standards for agency discretion, and vests unbridled discretion in the agency.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioner, Osceola Fish Farmers Association, Inc. (OFFA), is a non-profit corporation whose members consist of tropical fish farmers in Osceola County, Florida. The parties have stipulated that OFFA has standing to bring this action. Respondent, South Florida Water Management District (District or Respondent), is a public corporation operating pursuant to Chapter 373, Florida Statutes, with its principal office in West Palm Beach, Florida. Among other things, the District has the authority to regulate the uses of water within its geographic boundaries, including Osceola County. On an undisclosed date, the District began test drawdowns (a lowering of the elevation of the water through control structures) in the Alligator Chain of Lakes just east of St. Cloud in Osceola County, where OFFA's members are engaged in tropical fish farming. The drawdowns were undertaken for the purpose of allowing the Florida Fish and Wildlife Conservation Commission (FFWCC) to conduct demucking activities in the lakes to enhance aquatic habitat. Prior to beginning work, the FFWCC obtained an Environmental Resource Permit from the Department of Environmental Protection (DEP). However, the District did not require either itself or the FFWCC to obtain a consumptive use permit on the theory that a lake drawdown for demucking activities was not a consumptive use and therefore did not require a permit. In an effort to halt future scheduled drawdowns, OFFA participated in a United States Army Corps of Engineers proceeding which culminated in the preparation of an Economic Impact Statement for FFWCC's drawdowns; filed a complaint with DEP under Section 373.219(2), Florida Statutes, alleging that an unlawful consumptive use (without a permit) was taking place (which complaint was found to be insufficient); filed an action for injunctive relief in circuit court under Section 403.412, Florida Statutes (which was dismissed or dropped for undisclosed reasons); and finally initiated a proceeding against the District under Section 120.56(4), Florida Statutes, alleging that the District had adopted "an incipient non-rule policy of exempting lake 'drawdowns' from water use permitting requirements" (DOAH Case No. 00-3615RU). To avoid the consequences of an adverse ruling in the latter action, the District began rulemaking proceedings to adopt an amendment to Rule 40E-2.041(1), Florida Administrative Code, to codify its policy relative to lake drawdowns. As amended, the rule reads as follows: Unless expressly exempt by law or District rule, a water use permit must be obtained from the District prior to any use or withdrawal of water. The drawdown of lakes for environmental, recreational, or flood control purposes is not regulated by Chapter 40E-2 or 40E-20, F.A.C. (Underscored language represents amended language). Petitioner has challenged only the amendment, and not the existing rule. The effect of the rule is obvious - a lake drawdown for one of the three stated purposes in the rule will not require a permit, while all other lake drawdowns will. As specific authority for the proposed amendment, the District cites Sections 373.044 and 373.113, Florida Statutes. The former statute authorizes the District to "adopt rules pursuant to [Chapter 120] to implement the provisions of this chapter," while the latter statute authorizes it to "adopt rules pursuant to [Chapter 120] to implement the provisions of law conferring powers or duties upon it." The District has cited Sections 373.103(1), 373.219, and 373.244, Florida Statutes, as the specific laws being implemented. The first statute provides that if specifically authorized by DEP, the District has the authority to "administer and enforce all provisions of this chapter, including the permit systems established in parts II, III, and IV of [Chapter 373], consistent with the water implementation rule"; the second statute provides in relevant part that the District may "require such permits for consumptive use of water and may impose such reasonable conditions as are necessary to assure that such use is consistent with the overall objectives of the district or department and is not harmful to the water resources of the area"; and the third statute provides for the issuance of temporary permits while a permit application is pending. In regulating the uses of water within its boundaries, the District administers a comprehensive consumptive water use permit program under Part II, Chapter 373, Florida Statutes. Both parties agree that under Section 373.219(1), Florida Statutes (2000), all "consumptive uses" of water require a permit, except for the "domestic consumption of water by individual users," which use is specifically exempted by the same statute. The global requirement for permits is also found in Rule 40E-2.041 (the rule being amended), as well as Rule 40E- 1.602(1), which provides in relevant part that unless expressly exempted by statute or rule, "[a] water use individual or general permit pursuant to Chapters 40E-2 or 40E-20, F.A.C., must be obtained prior to use or withdrawal of water " The term "consumptive uses" is not defined by statute, but the District has promulgated a rule defining that term. By Rule 40E-2.091, Florida Administrative Code, the District has adopted by reference a document known as the "Basis for Review for Water Use Permit Applications with the South Florida Water Management District." Section 1.8 of that document contains definitions of various terms used in the permitting program, including "consumptive use," which is defined as "[a]ny use of water which reduces the supply from which it is withdrawn or diverted." The District's policy for lake drawdowns, as proposed in the rule amendment, is inconsistent with this definition. On this disputed issue, Petitioner's evidence is accepted as being the most persuasive, and it is found that a lake drawdown for any purpose is a consumptive use of water. Section 373.219(1), cited as a specific law being implemented, provides that the District "may require such permits for consumptive use of water and may impose such reasonable conditions as are necessary to assure such use is consistent with the overall objectives of the district and department and is not harmful to the water resources of the area." The District construes this language as authorizing it to decide which uses of water are a "consumptive use," and which are not, and to implement a rule which codifies those decisions relative to lake drawdowns. Not surprisingly, Petitioner views the statute in a different manner and argues that the statute simply allows the District to create a permit program that is consistent with Chapter 373; that under the law a permit is required for all consumptive uses, including lake drawdowns; and that the District has no authority to carve out an exception for a lake drawdown from the permitting process, no matter what the purpose. As noted above, the District has identified three instances (for environmental, recreational, and flood control purposes) when a lake drawdown does not require a consumptive use permit. These terms are not so vague that a person of common intelligence would have difficulty understanding them. However, the proposed rule contains no prescribed standards to guide the District in its administration of the rule.
The Issue The issues to be determined in this proceeding are whether Fury Management, Inc., is entitled to an environmental resource permit under chapter 373, Florida Statutes (2012),1/ and a sovereignty submerged land lease under chapter 253, Florida Statutes, for a proposed project in the waters off the coast of Key West, Florida.
Findings Of Fact The Parties Petitioner Last Stand is a corporation formed in 1987 to protect, promote, and preserve the quality of life in Key West and Monroe County "with an emphasis on the environment." Last Stand has 235 members. The president of Last Stand, Mark Songer, said that members use the "back country" area off Key West, which includes the proposed lease area, for boating, fishing, swimming, and bird watching. He was not specific about the number of members that do so. Petitioner George Hallorhan, a member of Last Stand, named nine members of Last Stand that use the back country area for recreational activities. Hallorhan is a natural person residing at 16B Hilton Haven Drive in Key West. Hallorhan has used the waters that include the proposed project site for sailing, fishing, boating, snorkeling, and nature observation. The Department is the state agency charged by statute with the responsibility to regulate construction activities in waters of the state. The Department has also been delegated authority from the Board of Trustees of the Internal Improvement Trust Fund ("Board of Trustees") to review applications for submerged land leases for structures and activities that will preempt the use of sovereignty submerged lands. Fury is a Florida corporation that is in the "water attraction" business and has been operating in Key West for 17 years. It currently operates a recreational site similar to the proposed project nearby.2/ Fury owns no riparian uplands. The Affected Waters and Water Bottom The proposed lease area is approximately .6 miles offshore of Key West and is 17,206 square feet in size (0.39 acres).3/ The site is within the Florida Keys National Marine Sanctuary, which is designated an Outstanding Florida Water. Outstanding Florida Waters are waters designated by the Environmental Regulation Commission as worthy of special protection because of their natural attributes. See § 403.061(27), Fla. Stat. The proposed lease area is close to the Key West National Wildlife Refuge. It lies between two shallow landforms known as Pearl Bank and Frankfurt Bank. The closest upland is Wisteria Island, which is undeveloped. The water depth at the site is about ten feet. The Department and Fury contend the bottom beneath the proposed floating structures is rocky and mostly denuded, with no seagrasses and only scattered sponges and octocorals (soft corals) that do not constitute a "benthic community." They found turtle grass growing between the denuded areas and beyond the project site. "Benthic communities" are defined in Florida Administrative Code Rule 18-21.003(12) as areas where "associations of indigenous interdependent plants and animals occur," such as grass beds, algal beds, sponge beds, and octocoral patches. Petitioners' experts said there are seagrasses, octocorals, sponges, and algal species beneath the proposed structures that compose a benthic community. The marine biologists employed by the Department and Fury spent more time investigating the resources at the site than did Petitioners' biologists. In addition, Fury's consultants determined with greater precision the location of the benthic resources in relationship to the proposed floating structures than did Petitioners' consultants. The more persuasive evidence regarding the benthic resources and their locations was the evidence presented by the Department and Fury. The Proposed Activities Fury proposes to permanently moor a registered vessel consisting of two connected, floating platforms. It was sometimes referred to as a "barge." One floating platform would support up to ten jet skis, and the other would support up to ten kayaks. The structure would be used to moor the catamaran that brings customers to and from the site. There would also be three floating, inflatable water toys moored at the site: a trampoline, a climbing wall, and a slide. The area between the floating platforms and water toys would be roped-off to create a central swimming area. The platforms and the water toys would be secured to the water bottom with permanent anchors. The floating platforms would remain moored at the site (except when a hurricane is approaching), but the water toys, jet skis, and kayaks would be brought back to an upland location each night. The proposed project would be part of the "Fury Ultimate Adventure," a six-hour tour in which customers are taken to a reef for three hours in the morning to snorkel and, then, to the floating platforms for three hours in the afternoon to swim, ride jet skis and kayaks, and play on the water toys. Fury would provide an educational program for its customers to inform them about the importance of the marine environment, including seagrasses, mangroves, marine turtles, manatees, corals, whales, and fishes. Educational documents would also be made available to Fury's customers. Impact Assessment in General In assessing the potential impacts of the proposed project, consideration must be given to the fact that Fury currently operates the same activities only 500 feet away. The proposal is to move the activities to the new site where they will be subject to regulation for the first time. Fury's existing operations do not require an environment resource permit from the Department because Fury uses a structure that has been registered as a vessel and uses conventional anchors. Generally, vessel operation and mooring are not subject to Department regulation because they do not involve construction in waters of the state. Fury's existing operations do not require a lease from the Board of Trustees because the activities are being conducted over private water bottom, not sovereignty submerged land. There are two similar, competing operators near Wisteria Island. The competing operators do not have leases from the Board of Trustees or permits from the Department because they are operating as vessels, using conventional anchors, and moving every day. Fury's existing operations and the operations of its competitors are not subject to the conditions that can be imposed in a sovereignty submerged lands lease and environmental resource permit to protect the environment. Environmental Impacts The floating platforms and water toys would be secured to helical screw anchors installed into the bottom at locations where there are no seagrasses, sponges, or octocorals. The proposed anchors and anchor lines are designed to avoid the damage to seagrasses and other benthic resources often caused by conventional vessel anchors and chains that can drag across the bottom. The ten-foot water depth at the project site ensures that activities on the surface, such as boating and swimming, will not impact the bottom. The proposed project would cause some shading to submerged resources, but the shading would be minimal and would not cause the loss of seagrasses or other benthic resources. There would be no pollutant discharges associated with the proposed project. The catamaran that transports customers to the site has two Coast Guard-approved restrooms. The jet skis would not be fueled at the site. Fury is required to monitor water quality at two sampling sites, one within the lease area and a second 300 feet away to represent background conditions. Fury's operations would be subject to a sewage handling plan, a waste management plan, a fueling plan, and an emergency spill response plan that address these potential sources of environmental pollution. The Florida Fish and Wildlife Conservation Commission was informed of the proposed project, but made no objection to the Department. Navigational Impacts The proposed site lies between Pearl Bank and Frankfurt Bank, which are about 1,500 feet apart. The proposed project is 107 feet wide at its widest point, leaving adequate space for navigation around the anchored platforms and water toys. The water depth in the remaining space between the banks varies from six to 12 feet, which is sufficient water depth for the vessels that use the area. There are no marked channels in the area. Arnaud Girard, a salvage boat operator, said there is an unmarked "nine- foot" channel between the banks that is used by commercial and recreational boaters. Girard's testimony about boats using the nine-foot channel and why he opposes Fury's proposed project was confusing. Girard seemed to indicate, for example, that Fury's existing operation is a greater impediment to the use of the nine-foot channel than Fury's proposed project. Fury's customers would be using watercraft around the project site for only three hours each day. Only seven jet skis would be out at any one time, six ridden by customers and one ridden by a Fury safety guide. Fury would not be adding more jet skis into the area because jet skis are already using the area as part of Fury's existing operations. The jet ski-riding area would be marked off with four red buoys permanently anchored to the bottom. The guide would accompany the customers to the ride area to monitor the jet ski use and keep the customers inside the riding area. The riding area (about 19 acres) is not a part of the area to be leased. Other vessels are not excluded from the riding area. The floating platforms and water toys will have Coast Guard-approved lighting. The Coast Guard does not believe the structures would cause hazards to public safety or navigation if they are adequately lighted. It is in Fury's financial interest to provide safe navigation for its customers. Numerous live-aboard vessels anchor in these waters. Navigation in this area already requires a careful lookout for anchored obstacles. The preponderance of the evidence shows that the proposed activities would not create greater challenges for vessels attempting to navigate through the area or greater potential for collisions than exist currently. The proposed activities do not create a navigational hazard. Impacts to Public Use The proposed project would exclude the public from 17,206 square feet of sovereignty land, which takes into account the overlying floating platforms, moored catamaran, and floating water toys as well as the central swimming area. This exclusion would be offset in part by the public's access to the waters where Fury currently anchors its vessel and water toys. The United States Fish and Wildlife Service reviewed the application and is satisfied that Fury's use of buoys to mark the jet ski-riding area will prevent jet skis from entering the wildlife refuge, where jet skis are prohibited. Aesthetic Impacts Petitioners contend that the aesthetic values of the proposed lease area would be significantly diminished. The assessment of aesthetic values is often subjective and, to avoid subjectivity, requires consideration of all vistas, human activities, and structures that make up the current aesthetics of the area. It is noted, for example, that Hallorhan testified that he does not visit the area anymore because of existing "jet skis and noise." See also Fury Exhibit 1. On this record, the evidence is insufficient to show that the existing aesthetic values in the area would be diminished by the proposed project. Secondary Impacts The proposed project would have minimal impact. There are few places in the general area with a hard bottom and no seagrasses or benthic communities that would be adversely affected, making it difficult for any future applicant to demonstrate minimal impact. Petitioners failed to prove that there would be significant secondary impacts associated with the proposed project that require denial of the environmental resource permit. Public Interest/Environmental Resource Permit To obtain a permit for construction activities in an Outstanding Florida Water, it is necessary to show that a proposed project would be "clearly in the public interest." Section 373.414(1)(a) directs the Department to consider and balance the following criteria as part of this determination: Whether the activity will adversely affect the public health, safety, or welfare or the property of others; Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity; Whether the activity will be of a temporary or permanent nature; Whether the activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061; and The current condition and relative value of functions being performed by areas affected by the proposed activity. Fury's proposed activities would not adversely affect the public health, safety, or welfare or the property of others. The proposed activities would not adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. The proposed activities would not adversely affect navigation or the flow of water or cause harmful erosion or shoaling. The proposed activities would not adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity. The proposed activities would be of a permanent nature. The proposed activities would not adversely affect significant historical and archaeological resources. The current condition and relative value of functions being performed by areas affected by the proposed activities would not be diminished. It is in the public interest to regulate Fury's activities, which are now unregulated. Fury's proposed project is clearly in the public interest. Mitigation Under section 373.414(1)(b), if an applicant cannot eliminate potential adverse impacts, the Department must consider measures proposed by or acceptable to the applicant to mitigate the adverse effects. Initially, the Department determined that all of the potential adverse impacts of Fury's proposed project would be remedied through avoidance and minimization, and, therefore, mitigation was not required. Later, "in an abundance of caution," the Department decided to require mitigation "to offset the minimal adverse impacts" which were identified as being associated with the screw anchors installed in the substrate and the permanent nature of the project. However, at the final hearing, Tim Rach, chief of the Bureau of Submerged Lands and Environmental Resources, said he did not think mitigation was needed. Fury proposes to pay $4,000 to the Florida Keys National Marine Sanctuary Foundation ("Foundation"), a 501(c)(3) corporation, for the Foundation's Key West mooring buoy program. Similar donations to benefit the buoy program have been accepted in the past by the Department as mitigation. The purpose of the mooring buoy program is to provide a place to moor vessels so that conventional vessel anchors do not have to be used. The buoys are permanently located near or above areas of coral reef or other sensitive benthic communities within the Florida Keys National Marine Sanctuary to prevent damage by vessel anchors. Petitioners contend that Fury's proposed donation to the Foundation is unacceptable because it was not made for an "environmental creation, preservation, enhancement or restoration project" as required by section 373.414(1)(b)1. The Department considers the buoy program to be a preservation project because it preserves environmentally-sensitive benthic communities. Petitioners contend that the monetary donation is also improper because the buoy program is not an environmental project formally "endorsed" by the Department. The Department has accepted donations to the mooring buoy program several times in the past and states that it endorses the program as a preservation project. Public Interest/Sovereignty Submerged Lands Lease Rule 18-21.004(1)(a) requires that activities on sovereignty submerged lands not be contrary to the public interest. Rule 18-21.003(51) defines public interest in this context as: demonstrable environmental, social, and economic benefits which would accrue to the public at large as a result of a proposed action, and which would clearly exceed all demonstrable environmental, social, and economic costs of the proposed action. Therefore, to obtain authorization to use sovereignty submerged lands lease, an applicant must create a net public benefit. Regulating Fury's proposed activities by issuing the permit and lease creates a net public benefit because such regulation allows the Department to ensure that the currently- unregulated activities do not adversely affect environmental resources. Fury's proposed project would not affect any riparian rights. Traditional Recreational Uses Petitioners contend that the proposed project would conflict with rule 18-21.004(2)(a), which requires that all sovereignty lands "shall be managed in essentially their natural conditions, propagation of fish and wildlife, and traditional recreational uses such as fishing, boating, and swimming." Petitioners assert that the proposed water toys are not traditional recreational uses that are allowed under this rule. Swimming is a traditional recreational use, as is the use of personal watercraft. Floating "waterparks" and inflatable water toys are recent and uncommon uses. Such uses, far from shore, are not traditional uses.4/ However, the rule also allows "[c]ompatible secondary purposes and uses which do not detract from or interfere with the primary purpose." The Department views Fury's primary uses as swimming and boating and the other uses as compatible secondary uses. Water-Dependent Activities Rule 18-21.004(1)(g) limits activities on sovereignty lands to "water dependent activities" unless the Board of Trustees determines that it is in the public interest to allow an exception as determined by a case-by-case evaluation. A water-dependent activity is defined in rule 18-21.003(71) to mean an activity that can only be conducted on, in or over water because it requires direct access to the water body. Inflatable water toys like the ones proposed by Fury are relatively new products, and the question whether they are water dependent has only recently been considered by the Department. The Department determined they are water dependent and has authorized two similar operations in other parts of the state. Petitioners claim that rock climbing, jumping on a trampoline, and sliding are not activities that require direct access to the water, and, therefore, the water toys are not water-dependant activities. It is an erroneous analysis to consider whether jumping, climbing, and sliding can also be done on land. These activities are transformed when the medium into which a person jumps, slides, or falls is water. Many people enjoy jumping, sliding, and falling into water. To experience this kind of recreation, one needs water. Past Violations Under Florida Administrative Code Rule 40E-4.302(2), the Department must consider a permit applicant's past violation of any Department rules adopted pursuant to sections 403.91 through 403.929 or any District rules adopted pursuant to part IV, chapter 373. Petitioners contend that a 2009 Department enforcement case against Fury shows Fury is incapable of providing reasonable assurance that it will comply with all applicable permit requirements. The Department issued a Notice of Violation ("NOV") to Fury on July 14, 2009, for "Unauthorized structures and activities on or over Sovereignty Lands," which was identified as a violation of section 253.77 and rule 18-21.004(1)(g). The NOV did not involve a violation of a rule adopted pursuant to chapters 403 or 373. Therefore, rule 40E-4.302(2) is inapplicable. There is no similar rule of the Board of Trustees that requires it to consider past violations of rules adopted pursuant to chapter 253 when reviewing an application to use sovereignty submerged lands. The enforcement case against Fury was satisfactorily resolved. The violation does not indicate that Fury should be refused a sovereignty submerged lands lease.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Consolidated Environmental Resource Permit and Lease to Use Sovereignty Submerged Lands be issued by the Department; The permit should direct that Fury's monetary donation for mitigation shall be paid to the Florida Keys National Marine Sanctuary Foundation for use in the Florida Keys Mooring Buoy Account 30.4.4.6.; and The lease should be modified to show the area to be leased is 17,206 square feet. DONE AND ENTERED this 31st day of December, 2012, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER 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 31st day of December, 2012.
