95-001577 Robert Starr, Jim Duff, Betty Brenneman, Michele D`amour, Richard Bossey, And Jane Bossey vs. Bocilla Utilities Company And Department Of Environmental Protection Status: Closed Recommended Order on Friday, August 25, 1995.

Summary: Water plant operator on bridgeless barrier island failed to provide reasonable assurances wells would be safe from floods/wave action.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT STARR, BETTY )

BRENNEMAN, and JIM DUFF, )

)

Petitioners, )

)

vs. ) CASE NO. 95-1577

)

BOCILLA UTILITIES, INC. and )

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondents. )

______________________________)

RECOMMENDED ORDER

Final hearing was held in Port Charlotte, Florida, on July 31 and August 1,

1995, before Robert E. Meale, Hearing Officer of the Division of Administrative

Hearings.

APPEARANCES

The parties were represented at the hearing as follows:

For Petitioners: Robert Starr

Post Office Box 5337

Grove City, Florida 34224

Betty Brenneman

Post Office Box 67

Placida, Florida 33946

Jim Duff

Post Office Box 41

Placida, Florida 33946

For Respondent M. Christopher Bryant

Bocilla Oertel Hoffman

Utilities: Post Office Box 6507

Tallahassee, Florida 32314-6507

For Respondent Thomas I. Mayton, Jr.

Department of Assistant General Counsel

Environmental Department of Environmental Protection

Protection: 2600 Blair Stone Road

Tallahassee, Florida 32399-2440

STATEMENT OF THE ISSUE

The issue in this case is whether Bocilla Utilities, Inc. is entitled to a

public drinking water construction permit for the expansion of an existing

reverse-osmosis water plant located on Don Pedro Island.

PRELIMINARY STATEMENT

By Application for a Public Drinking Water Facility Construction Permit

filed January 26, 1995, Bocilla Utilities, Inc. requested a permit for the

expansion of its water plant and the addition of two new water wells.

By Intent to Issue dated February 27, 1995, the Department of Environmental

Protection stated its intent to issue the permit.

By Petition dated March 17, 1995, Petitioners challenged the issuance of

the permit on several grounds.

At the hearing, Bocilla Utilities called five witnesses and offered into

evidence 22 exhibits. The Department of Environmental Protection called two

witnesses and offered into evidence three exhibits. Petitioners called seven

witnesses and offered into evidence 12 exhibits. All exhibits were admitted

except Petitioners Exhibits 4, 5, and 7, which were proffered.

The transcript was filed August 8, 1995. Rulings on timely filed proposed

recommended orders are in the appendix.

FINDINGS OF FACT

1. Bocilla Utilities, Inc. (Applicant) was incorporated in the mid-1980s

for the purpose of supplying water to a residential development being developed

by some or all of the principals of the water utility. The residential

development is on a bridgeless barrier island in Charlotte County.

2. Applicant initially proposed locating the plant on the mainland with

submerged pipes to the island. This proposal was approved by the Army Corps of

Engineers and Department of Environmental Regulation, but the Trustees of the

Internal Improvement Trust Fund denied Applicant's request for an easement

across submerged state lands.

3. After failing to obtain a submerged land easement, Applicant obtained

the permits to build a reverse-osmosis (RO) water plant at its present location

on the barrier island. Included among the permits was a permit from the

Department of Natural Resources dated September 11, 1985, allowing Applicant to

construct the water treatment plant, two underground concrete water storage

tanks, and a tennis court on top of the tanks up to 100 feet seaward of the

coastal construction control line.

4. Applicant is a certificated utility that, since September 1994, has

been regulated by the Public Service Commission. It was previously regulated by

Charlotte County.

5. By Application for a Public Drinking Water Facility Construction Permit

filed January 26, 1995 (Application), Applicant requested a permit to expand the

treatment capacity of its water plant from 30,000 gallons per day (gpd) to

120,000 gpd. By installing the new treatment equipment in two stages, the plant

would have an immediate capacity of 60,000 gpd. Applicant proposes no material

changes to the existing water storage tanks, distribution system, or the size or

location of the building that houses the existing and proposed water treatment

equipment.

6. The Application form asks Applicant to identify any well construction

permits obtained from the water management district and to provide a map showing

any sanitary hazards within 500 feet of each proposed well. The Application

form requires Applicant's professional engineer to attest that the project

complies with Chapter 62-555, Florida Administrative Code. The Engineering

Report attached to the completed Application supplies the requested information,

but explains that Applicant's hydrogeologist had not, as of the date of the

report, obtained the well-construction permits from the water management

district.

7. By Intent to Issue dated February 27, 1995, the Department of

Environmental Protection (DEP) gave notice of its intent to issue the requested

permit. Noting that it has permitting jurisdiction under Section 403.861(9),

Florida Statutes, and that the project is not exempt, DEP determined that a

public drinking water construction permit is required for the proposed work.

The Intent to Issue is based on DEP's

belief that reasonable assurances have been

provided to indicate that the proposed project

will not adversely impact water quality and

the proposed project will comply with the

appropriate provisions of Florida Administrative

Code Rules 62-4, 62-550, 62- 555 and 62-699.

8. Petitioners timely objected to the issuance of the proposed permit.

Petitioners reside in Applicant's certificated area on the barrier island. They

presently obtain their water from private wells or cisterns, rather than

Applicant. If the permit were granted so as to expand Applicant's production

capacity, Petitioners would be more likely required to obtain water from

Applicant due to Charlotte County's mandatory hookup ordinance.

9. About a week before filing the Application, Applicant applied on

January 20, 1995, to the Southwest Florida Water Management District (SWFWMD)

for permits for the construction of the two wells included in the draft permit.

10. SWFWMD granted these permits on February 8, 1995, about three weeks

after receiving the applications. Consistent with its normal practice in

granting well-construction permits, SWFWMD did not provide interested persons

with a point of entry to challenge the permits.

11. The SWFWMD permits provide in part:

A. Compliance with state and local county

health regulations as per Chapter 17-555,

Florida Administrative Code (F.A.C.), is

required via the Drinking Water System Permit.

B. Compliance with Chapters 17-532 and 17- 555,

F.A.C., on construction standards and grouting

procedures for Public Supply Wells shall be

followed.

* * *

D. This well site has been judged as satisfactory

based on the location and information provided to

[SWFWMD] at the time of the well site inspection.

. . .

* * *

1. Public Supply Wells must meet certain setback

requirements from all potential sources of

contamination. To obtain and retain your Drinking

Water System Permit, please coordinate any future

development of the surrounding property within 200'

of your well site with the Charlotte County Health

Department.

* * *

12. By letter dated February 14, 1995, from a SWFWMD representative to

Applicant's hydrogeological consultant, SWFWMD acknowledged that it granted

Applicant a setback variance of 100 feet from nearby septic systems in

permitting the two new wells. The letter states that the "variance is based upon

the known geohydrology of the area and the proposed construction of the wells,"

as well as an understanding that the "existing public system is working out with

no problems."

13. A month later, a letter from a DEP engineer identifies various types

of sanitary hazards and implicitly ratifies the setback variance granted by

SWFWMD. By letter dated March 14, 1995, Gary Maier identified sanitary hazards

as septic tank systems, sewer lines, swimming pools and associated chemicals,

pet excretions, and residential chemicals such as pesticides, fertilizers,

paints, oils, and solvents. Mr. Maier's letter acknowledges that SWFWMD had

granted a variance from 200 feet to 100 feet "due to geologic and treatment

conditions," but cautions that "any further decrease in setbacks for sanitary

hazards would be imprudent."

14. Applicant's water plant is located on Don Pedro Island, which is part

of an island chain consisting, from north to south, of Knight Island, Don Pedro

Island, and, usually, Little Gasparilla Island. The low-lying island chain

fronts the Gulf of Mexico on the west. The northern end of the island chain

abuts Lemon Bay on the east. Over the years, storms have opened and closed

passes at various points along the island chain. The island chain is vulnerable

to flooding, and some areas are more vulnerable than others.

15. One of the historic passes is Bocilla Pass. The plant site area is

about a half mile south of this now-closed pass. The Gulf beaches on either side

of the point at which the Bocilla Pass emptied into the Gulf have suffered

considerable erosion in recent years, to the point that recently built homes

have been inundated by water and had to be removed or razed.

16. The plant site area includes the building housing the water treatment

and other equipment, two 50,000-gallon storage tanks immediately to the west of

the building, the existing water supply well located just east of the building,

and the two proposed water supply wells located a short distance east and south

of the building.

17. The existing storage tanks, which mark the westernmost extent of the

plant site area, are about 235 feet east of a pronounced erosion line along the

Gulf shore and are separated from the Gulf by South Gulf Boulevard. Immediately

adjacent to the tanks is the building housing the water treatment equipment. The

two proposed wells would be located about 200 and 450 feet south of the tanks.

18. The plant site area is much closer to water on the east. The

southerly proposed well is about 12 feet west of the mean high water line of

Bocilla Lagoon, and the northerly proposed well is about 16 feet west of the

mean high water line of Bocilla Lagoon. The building housing the water

treatment equipment is further away from the water, but still less than 50 feet.

19. Bocilla Lagoon is a long and narrow waterway that was dredged in a

north-south direction parallel to the Gulf shoreline. Bocilla Lagoon is closed

off by land less than a quarter of a mile south of the plant site area. The

lagoon runs to the north to connect to what remains of Bocilla Pass, which then

runs easterly a short distance to a dredged extension of Lemon Bay.

20. The building housing the water treatment equipment and the storage

tanks are not located in the vulnerable FEMA V[elocity] zone. However, the

record does not establish the location of the proposed wells relative to the V-

zone. Testimony concerning the location of the V-zone relative to the water

plant establishes only that the building, not the two proposed wells, are safely

outside the V-zone. Nothing in the record establishes contour lines on the

barrier island in the vicinity of the plant site area or the elevation of the

land at the site of the two proposed wells.

21. Applicant has recently upgraded the security of the storage tanks

through the addition of locks to the manholes. The installation of fences is

impractical and unnecessary because the tanks are topped by a six-inch,

reinforced slab of concrete that also serves as tennis courts.

22. The proposed wells would be well constructed. They would extend 167

feet into a confined artesian aquifer. The concrete pressurized grouting

coupled with a potentiometric surface of seven feet make it unlikely that the

wells would be vulnerable to contaminants. During severe-storm conditions,

pumping would cease, leaving the system in its naturally pressurized state, so

that surface water could not easily flow down into the well. Additionally, the

RO filtration technology is one of the most effective at eliminating

contaminants from drinking water.

23. However, failing to have shown that the two proposed wells are outside

the V-zone, Applicant has also failed to provide reasonable assurances that the

two proposed wells would be protected from damage from the velocity wave action

associated with the V-zone.

24. Applicant has constructed and operated the water plant in an exemplary

fashion. Applicant has at all times met or exceeded applicable standards for

water quality, safety, and operations. Original construction exceeded minimum

requirements and added to the durability of the fixtures. The building housing

the water treatment equipment and hydropneumatic tank has been issued a

floodproofing certificate by a registered engineer. The certificate states that,

with human intervention in the form of bolting predrilled plywood boards over

openings, the plant is waterproofed to an elevation of 14 feet NGVD, which is

one foot higher than the FEMA-supplied base flood elevation of 13 feet NGVD.

25. Applicant employs an operations manager with a Class A license rather

than one with merely a Class C license, even though only a Class C operator is

required for a water plant of this size. Also, Applicant maintains a low-level

chlorine indicator, even though not required to do so due to the small size of

the utility.

26. The relevant sewage flows from the quantity of water that would be

drawn by each proposed well would be greater than 2000 gpd.

27. Near the proposed wells are single- and multi-family residences served

by on-site sewage disposal systems, the above- described road, a swimming pool

on the other side of the road, an injection well, and the treatment plant at

which Applicant stores anti-scaling agents, ammonia, chlorine, and acid.

However, Applicant has shown that none of these items is within 100 feet of the

proposed wells. Bocilla Lagoon is not a sanitary hazard at this time.

28. The two deficiencies in Applicant's proof relate solely to the

susceptibility of the proposed wells to a significant risk of damage from

flooding and other disasters and the location of the proposed wells relative to

areas least subject to localized flooding. In all other respects, such as fire

flow and security, Applicant has provided reasonable assurances that the

applicable criteria would be satisfied or that the proposed work would have no

bearing on the issue raised by Petitioners.

CONCLUSIONS OF LAW

29. The Division of Administrative Hearings has jurisdiction over the

subject matter. Section 120.57(1), Florida Statutes. (All references to

Sections are to Florida Statutes. All references to Rules are to the Florida

Administrative Code.)

30. Applicant and DEP stipulated to Petitioners' standing. Absent the

stipulation, Petitioners have standing as residents of the island chain who, as

a result of the proposed expansion of capacity, would be more likely to be

required to hookup to Applicant's expanded service due to Charlotte County's

mandatory hookup ordinance.

31. Rule 62-555.530(1) requires DEP to evaluate each application for a

public water supply permit for compliance with applicable water quality

standards, which are not at issue in this case, and for "[a]dequate engineering

design complying with acceptable engineering principles as established in Rule

62- 555.310 through .360, F.A.C." Rule 62-555.530(2) provides that DEP "shall

either issue or deny a permit pursuant to Chapter 120, F.S."

32. Rule 62-555.300 explains the purpose of Rules 62- 555.310 through .360

as follows:

The quality of drinking water when it ultimately

reaches the consumer depends on the construction,

operation, and maintenance of a public water

system. The following rules establish requirements

for construction, operation, and maintenance of a

public water system and cover all aspects of a

public water system from collection through

treatment, storage, and distribution.

33. Two rules are relevant to this case. Rule 62-555.310 provides:

Raw water shall be obtained from the most desirable

source that is available, and an effort shall be

made to prevent or control contamination of the

source. The plant site area shall not be subject

to a significant risk from earthquakes, floods,

fires, or other disasters which could cause a

breakdown of the public water system or any

portion thereof.

34. Rule 62-555.312 states:

The following setback distances around public

drinking water supply wells apply to newly

constructed wells. However, the 100 and 200

foot setback distances which have been in effect

since November 9, 1977 and December 13, 1983,

respectively remain in effect.

(1) Public drinking water supply wells that

serve water systems having total sewage flows

greater than 2,000 gallons per day shall be

placed no closer than 200 feet from on-site

sewage disposal systems (septic tanks) other

than land application of reclaimed water areas.

Public drinking water supply wells serving water

systems having total sewage flows of less than or

equal to 2,000 gallons per day shall be placed no

closer than 100 feet from on-site sewage disposal

systems (septic tanks) other than land application

of reclaimed water areas.

* * *

(4) Public drinking water supply wells shall

be located no closer than 100 feet from other

sanitary hazards as defined in Rule 62- 550.200,

F.A.C.

(5) Public drinking water supply wells shall

be located on ground least subject to localized

flooding, and as far as is practical when the

direction of ground water slope or movement is

known, wells shall be located on the upstream

side of sanitary hazards.

(6) [DEP] or appropriate water management

district shall decrease or increase these

distances when approving well construction permits,

if justified, by the presence or absence of

natural barriers such as impermeable geological

strata, adequate protection by treatment, or

proper construction practices.

35. The remaining rules in Rules 62-555.310 through .360 are not directly

relevant to this case. These rules govern the location of water mains; well-

drilling methods (Rule 62- 555.315); water treatment, storage, and

distribution; fluoridation; cleaning and disinfection; post-construction

certification by DEP; operation and maintenance; water testing; and cross-

connections.

36. The rules do not define "plant site area." Rule 62- 550.200(55)

defines "sanitary hazard" as a "physical condition which involves or affects any

part of a drinking water system or the raw water source, and that creates an

imminent or potentially serious risk to the health of any person who consumes

water from that system."

37. Applicant and DEP raise two major contentions concerning the scope of

review that DEP should properly give the Application. The first argument is

that DEP has delegated to SWFWMD the responsibility for ensuring that the two

proposed wells are suitably located.

38. The statutes and rules do not clearly divide responsibilities between

DEP and the water management districts in permitting public supply water wells.

But DEP cannot defer this decision entirely to SWFWMD for several reasons.

39. Even if DEP delegates to the water management districts the authority

over the location of public water supply wells, DEP does not necessarily deprive

itself of authority over the location of public supply wells. Section

373.308(1) authorizes DEP to delegate to the water management districts the

authority for issuing permits for the "location [and] construction" of water

wells. But Section 373.308(4) adds that this delegation is not necessarily

absolute:

Notwithstanding the provision in this section

for delegation of authority to a water management

district, [DEP] may prescribe minimum standards

for the location [and] construction of water

wells throughout all or parts of the state, as

may be determined by [DEP].

40. Sections 403.852(12)(d)2, 403.853(1)(a), and 403.861(7) and (9)

require DEP to adopt rules concerning public drinking water supplies.

Exercising this authority, DEP adopted Rules 62- 555.310 through 62-555.360 and

62-555.530.

41. DEP's rules acknowledge the role of the water management districts in

issuing permits to construct public water supply wells. Rule 62-555.510(2)

requires:

Before construction of a public water supply well,

the licensed water well contractor shall obtain an

application form from and apply to the appropriate

water management district for a permit to construct

the well in accordance with Rule 62-555.315 and

Chapter 62-532, F.A.C., and Chapter 373, Part III,

F.S.

42. The reference to Rule 62-555.315, which is a detailed rule governing

well-drilling methods, arguably stresses the role of the water management

districts in reviewing technical well- construction specifications. But the

omission of a similar express reference to the location of wells undermines the

absolute-delegation argument of Applicant and DEP on this point.

43. In any event, nothing in the rules implies that DEP must defer

absolutely to a water management district in applying the locational criteria

governing water wells, as set forth in Rule 62-555.312. DEP's rules contemplate

that the construction of a public water supply well will require a permit from

the water management district and a permit from DEP.

44. Rule 62-555.520 requires the applicant, prior to "commencing

construction or alteration," to use the same form on which the Application was

made in this case to apply "to [DEP]" for a construction permit. The

application form suggests that DEP anticipates an applicant will obtain a well-

construction permit from a water management district, but that DEP will also

undertake its own review of this information, at least as to the location of the

well.

45. For instance, DEP's application form requests a map showing sanitary

hazards within 500 feet of the proposed well. If the water management district

permit resolved all siting questions of the proximity of the water well to

sanitary hazards, DEP would not require this information on its application

form.

46. The only textual support for the argument of Applicant and DEP is Rule

62-555.312(6), which states that DEP "or" the water management district may

change setbacks for good cause. This language does not necessarily preclude DEP

from exercising jurisdiction over the location of public water supply wells. In

any event, setbacks are only part of the locational criteria, and the

disjunctive reference to the water management district or DEP is too slim a

basis on which to conclude that, in issuing public water supply construction

permits, DEP is prohibited from considering the locational criteria in Rule 62-

555.312.

47. The argument of Applicant and DEP that DEP cannot consider locational

criteria fails for another reason. If the responsibility for applying the

locational criteria fell exclusively to the water management district,

substantially affected persons such as Petitioners would lose their right, under

Chapter 120, Florida Statutes, to a formal hearing on these issues prior to the

issuance of the public water supply construction permit. Without regard to

whether these rights are extended by constitutional, statutory, or decisional

law, DEP's Rule 62-555.530(2) expressly guarantees that the issuance and denial

of permits will be governed by Chapter 120, Florida Statutes.

48. Thus, regardless whether SWFWMD applied the locational criteria of

Rules 62-555.310 through 62-555.360 in issuing the two well-construction

permits, DEP must also apply these criteria in deciding whether to issue the

public water supply construction permit sought in this case.

49. The setback for sanitary hazards is 100 feet except that it is, in

this case, 200 feet for septic tanks. DEP properly approved SWFWMD's reduction

of setbacks from sanitary hazards from 200 feet to 100 feet based on the depth

of the proposed wells; the proposed method of construction; the use of a

confined, well pressurized artesian aquifer, and the effectiveness of the

proposed RO treatment method. However, no reduction below 100 feet is

permissible.

50. Applicant has provided reasonable assurances that the two proposed

wells satisfy the setback requirements of Rule 62- 555.312(1), (4), and (6).

There are no sanitary hazards within 100 feet of either proposed well. The only

potential sanitary hazard within 100 feet of either well is Bocilla Lagoon, but

the record does not suggest that water quality of the lagoon constitutes a

sanitary hazard.

51. However, Applicant has failed to provide reasonable assurances that

the location of the proposed wells satisfies the requirements of Rule 62-

555.312(5), which is the only part of Rule 62-555.312 not addressing setbacks

from sanitary hazards.

52. Rule 62-555.312(5) contains two requirements. First, public drinking

water supply wells must be located on "ground least subject to localized

flooding." Second, "as far as practical when the direction of ground water

slope of movement is known," wells must be located on the upstream side of

sanitary hazards.

53. The second part of subsection (5) is not applicable. This part of the

rule is qualified by the clause, "as far as is practical when the direction of

ground water slope or movement is known." There is no indication that the

direction of ground water slope is known, so the second part of the rule has no

bearing on this case. In any event, the second part of the rule is not only

conditioned by knowledge of the direction of groundwater slope or movement, but

also by the qualification that the location is governed by the rule requirement

only "as far as is practical."

54. By contrast, the first part of subsection (5) is not conditioned upon

any knowledge of local conditions or the qualification of practicality. The

first part of the rule says that public drinking water supply wells shall be

located on "ground least subject to localized flooding."

55. The first part of Rule 62-555.312(5) thus requires a determination

that, if the local area is flooded, then the proposed wells must be on ground

that is the last site within the local area to flood. The first part of

subsection (5) ignores widespread flooding, but not localized flooding.

56. Absolutely nothing in the record indicates that the proposed wells are

on ground least subject to localized flooding. DEP has not disclosed its

interpretation of the phrases, "least subject" and "localized flooding." The

close proximity of the proposed wells to the mean high water line of Bocilla

Lagoon demands that Applicant and DEP address the location of the proposed wells

with respect to the extent to which they would be subject to localized flooding.

Applicant has not provided reasonable assurances as to this requirement of Rule

62- 555.312(5).

57. The proposed wells would be well constructed and, due to their

potentiometric surfaces, relatively unsusceptible to contamination. But Rule

62-555.312(5) focuses on susceptibility to localized flooding and makes no

exceptions for quality constructed wells, pressurized aquifers, or effective

filtration systems. Subsection (5) addresses the safety of public water supply

wells by ensuring that they are placed in areas least subject to localized

flooding, rather than relying entirely on quality well construction, positively

pressurized aquifers, and RO filtration systems.

58. Rule 62-555.310 also supplies locational criteria for the "plant site

area," which includes the building and its contents, including the proposed new

water treatment equipment. Applicant and DEP argue that the locational criteria

of Rule 62- 555.310 are inapplicable to the proposed expansion involving the

water treatment equipment. They point out that Applicant is seeking a permit

for the expansion--not initial construction--of a water treatment plant.

59. The Application is for a permit to quadruple capacity to 120,000 gpd

through the replacement of RO filters and the addition of two new supply wells.

Rule 62-555.310 states that the "plant site area shall not be subject to a

significant risk from . . . floods, fires, or other disasters which could cause

a breakdown of the public water system or any portion thereof."

60. Mr. Maier conceded that a vast plant expansion would require review of

the plant site area. His reasoning was that such an expansion would involve the

removal and addition of considerable equipment and would represent a fundamental

change in the plant. But he contended that the present expansion was not so

extensive as to trigger such review.

61. Obviously, there are alterations to water plants that do not add to

capacityeatment systems may be changed or updated, and storage tanks and

distribution systems may be replaced. Earlier permits for the plant site area

entitled the permittee to construct and operate a plant of the permitted

capacity at a specific area. Thus, reviewing later requests for permits to

alter treatment systems, storage tanks, and distribution systems, without

increasing capacity, should not normally trigger reconsideration of the original

approval of the location of the plant site area. Request for permits to alter

without any increase in capacity means that service remains the same in terms of

the extent of public reliance on specific quantities of water, and the risk

remains the same in terms of the extent of public harm in the event of the

interruption of such service.

62. In this case, Applicant seeks a permit to alter a system by increasing

its capacity by four times. This means that the public reliance on Applicant's

water is increased four times, and the public harm in the event of the

interruption of service is increased four times. The assessment of risk, by

rule, addresses the consequence of the breakdown in the public water system and

necessarily the extent of public harm done by such a breakdown. When

Applicant's water plant was originally permitted, an interruption in service

harmed one-quarter of the public that would come to rely on the expanded

capacity for which Applicant now seeks approval.

63. Thus, Rule 62-555.310 applies to the Application and the plant site

area subject to alteration.

64. Applicant has provided reasonable assurances that the new water

treatment equipment is not subject to a significant risk from floods, fires, or

other disasters that could cause a breakdown of the public water system or any

portion thereof. The risk to the building and its contents from flooding is

adequately attenuated by the location of the building outside of the more

dangerous V-zone and its compliance with FEMA floodproofing standards.

Notwithstanding some evidence concerning inadequate fire flows, there is no real

reason to doubt that the plant site area suffers a significant risk of damage

from fire. As Applicant pointed out, seawater to fight fires is plentiful on

the island.

65. Rule 62-555.310 also applies to the two proposed wells, which, in this

case, are part of the "plant site area." The rule does not refer only to the

"plant" itself, but rather extends to the entire "plant site area." The purpose

of the rule is to prevent breakdowns in the public water supply system, of which

a crucial part is the water supply well. In this case, the inclusion of the

proposed wells in the plant site area is reinforced by their close proximity to

the water treatment equipment, storage tanks, and pumps.

66. Applicant has failed to provide reasonable assurances that the

proposed wells are not subject to significant risk of damage from flooding or

other disasters, including wave action. Quality well construction, a pressurized

aquifer, and an RO treatment system tend to reduce the susceptibility of the

wells to damage from flooding and possibly wave action. But Applicant has not

provided reasonable assurances that the remaining risk satisfies the criteria of

Rule 62-555.310 in terms of the extent of risk and resulting damage.

67. Applicant's request for attorneys' fees and costs is denied.

RECOMMENDATION

It is

RECOMMENDED that the Department of Professional Regulation enter a final

order denying the application of Bocilla Utilities, Inc. for a public water

supply construction permit.

ENTERED on August 25, 1995, in Tallahassee, Florida.

___________________________________

ROBERT E. MEALE

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

on August 25, 1995.

APPENDIX

Rulings on Respondents' Proposed Findings

1-4: adopted or adopted in substance.

5: rejected as irrelevant and repetitious.

6-7 (except last sentence): adopted or adopted in substance.

7 (last sentence): rejected as unsupported by the appropriate weight of

the evidence and legal argument.

8 (except last sentence): rejected as subordinate, recitation of

testimony, and irrelevant.

8 (last sentence): adopted or adopted in substance.

9: rejected as irrelevant.

10: adopted or adopted in substance, except to extent of legal argument as

to effect of action of SWFWMD in granting variance.

11-12: rejected as irrelevant.

13 (except last sentence): adopted or adopted in substance.

13 (last sentence): rejected as irrelevant.

14-17 (except last sentence): adopted or adopted in substance.

17 (last sentence): rejected as legal argument.

18-21: adopted or adopted in substance.

22: rejected as unnecessary.

23: adopted or adopted in substance as to protection from only sanitary

hazards.

24-26: adopted or adopted in substance as to description of aquifer,

proposed well construction, and efficiency of RO filtration process, but not as

reasons in support of Paragraph 23.

27 (first sentence): adopted or adopted in substance.

27 (remainder): rejected as unnecessary.

28: adopted or adopted in substance.

29: rejected as unnecessary.

30-31: adopted or adopted in substance.

32: rejected as irrelevant.

33-40: rejected as unsupported by the appropriate weight of the evidence.

COPIES FURNISHED:

Virginia B. Wetherell, Secretary

Department of Environmental Protection

Twin Towers Office Building

2600 Blair Stone Road

Tallahassee, FL 32399-2400

Kenneth Plante, General Counsel

Department of Environmental Protection

Twin Towers Office Building

2600 Blair Stone Road

Tallahassee, FL 32399-2400

Robert Starr

P.O. Box 5337

Grove City, FL 34224

Betty Brenneman

P.O. Box 67

Placida, FL 33946

Jim Duff

P.O. Box 41

Placida, FL 33946

M. Christopher Bryant

Oertel Hoffman

P.O. Box 6507

Tallahassee, FL 32314-6507

Thomas I. Mayton, Jr.

Assistant General Counsel

Department of Environmental Protection

2600 Blair Stone Road

Tallahassee, FL 32399-2440

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this Recommended Order. Any exceptions to this Recommended Order should be

filed with the agency that will issue the final order in this case.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF ENVIRONMENTAL PROTECTION

ROBERT STARR, BETTY BRENNEMAN,

and JIM DUFF,

Petitioners,

vs. OGC Case No. 95-0665

DOAH Case No. 95-1577

BOCILLA UTILITIES, INC. and

DEPARTMENT OF ENVIRONMENTAL

PROTECTION,

Respondents.

_______________________________/

FINAL ORDER

On August 25, 1995, a Hearing Officer with the Division of Administrative

Hearings (hereafter "DOAH"), submitted his Recommended Order to the Respondent,

Department of Environmental Protection (hereafter "Department") 1/ Copies of

the Recommended Order were served upon the Petitioners, Robert Starr, Betty

Brenneman, and Jim Duff (hereafter "Petitioners"), and upon the Respondent,

Bocilla Utilities, Inc. (hereafter "Utility"). A copy of the Recommended Order

is attached hereto as Exhibit A.

On September 11, the Respondents 2/ timely filed joint Exceptions to

Recommended Order and a joint Request for Official Recognition. The Utility

also simultaneously filed a Request for Oral Argument. No exceptions or

responses were filed by the pro se Petitioners. The matter is now before the

Secretary of the Department for final agency action.

BACKGROUND

The Utility is a private utility owning and operating an existing public

drinking water plant located on Don Pedro Island. 3/ Don Pedro Island is a

bridgeless barrier island in the Gulf of Mexico and is located within the

geographical boundaries of Charlotte County, Florida. The Utility is currently

regulated by the Public Service Commission and provides water to customers of a

residential development on the island. Petitioners live on Don Pedro Island and

have residences within the Utility's certificated area, but are not present

customers of the Utility. Petitioners presently obtain their water from private

wells or cisterns, but may be required to obtain water from the Utility in the

future due to Charlotte County's mandatory hookup ordinance.

The Utility filed an Application for a Public Drinking Water Facility

Construction Permit (hereafter "Application") with the Department on January 26,

1995. (Utility Ex. 1) The Application requested a permit to expand the

treatment capacity of its water plant from 30,000 gallons per day (gpd) to

120,000 gpd. By installing the new treatment equipment in two stages, the plane

would have an immediate capacity of 60,000 gpd. The Application proposed no

material changes to the existing water storage tanks, distribution system, or

the size or location of the building that houses the existing and proposed water

treatment equipment.

On February 27, 1995, the Department executed a Notice of Intent to Issue

the requested permit to the Utility. (Utility Ex. 8) The Notice of Intent to

Issue observed that the Department has permitting jurisdiction under Section

403.861(9), Florida Statutes, and that the project was not exempt. The Notice

of Intent to Issue also contained a Department determination that a public

drinking water construction permit is required for the proposed work. The

Intent to Issue the permit was based on the Department's stated "belief that

reasonable assurances have been provided to indicate that the proposed project

will not adversely impact water quality and the proposed project will comply

with the appropriate provisions of Florida Administrative Code Rules 62-4, 62-

550, 62-555 and 62-669." Petitioners subsequently filed a timely petition

challenging the issuance of the proposed permit and requesting a formal hearing.

About a week before filing the Application with the Department, the Utility

also applied to the Southwest Florida Water Management District (hereafter

"Water District") for permits to construct two new water wells referred to in

the Application filed with the Department. The Water District granted these

well permits on February 8, 1995. The Water District apparently did not provide

the Petitioners with a point of entry to challenge the water well permits.

The Utility plant site area includes the building housing the water

treatment and other equipment, two 50,000-gallon storage tanks immediately to

the west of the building, the existing water supply well located just east of

the building, and the two proposed water supply wells located a short distance

east and south of the building. The existing storage tanks, which mark the

westernmost extent of the plant site area, are about 235 feet east of a

pronounced erosion line along the Gulf shore and are separated from the Gulf by

South Gulf Boulevard. Immediately adjacent to the tanks is the building housing

the water treatment equipment. The two proposed wells would be located about

200 and 450 feet south of the tanks. Near the proposed wells are single and

multi-family residences served by on-site sewage disposal systems.

A formal administrative hearing was held on July 31 and August 1, 1995,

before DOAH Hearing Officer Robert E. Meale (hereafter "Hearing Officer"). Each

of the parties presented the testimony of witnesses and had various exhibits

admitted into evidence. Proposed Recommended Order were filed by the parties

after the hearing and the Hearing Officer subsequently entered his Recommended

Order on August 25, 1995.

The Hearing Officer found that the Utility had failed to establish that the

two proposed wells (1) would not be susceptible to a significant risk of damage

from flooding and other disasters and (2) were to be located on ground least

subject to localized flooding. In view of these critical findings, the Hearing

Officer concluded that the Utility had failed to provide reasonable assurances

that its proposed water treatment expansion project would not violate the

provisions of Rules 62-555.310 and 62-555.312(5), Florida Administrative Code.

The Hearing Officer also made a related critical ruling of law that the

Department had not totally delegated to the Water District all responsibility

and authority to consider questions related to the adequacy of proposed water

wells identified in the wager treatment system-expansion application before the

Department for review. The Hearing Officer ultimately recommended that the

Department enter a Final Order denying the Utility's application for a permit to

expand the water treatment capacity of its existing water treatment plant on Don

Pedro Island.

RULING ON UTILITY'S REQUEST FOR ORAL ARGUMENT

The Utility filed a Request for Oral Argument before the Secretary in

connection with the agency review of its exceptions to the Hearing Officer's

Recommended Order. The provisions of Rule 62-103.200(3), Florida Administrative

Code, state that the Secretary of the Department, in her discretion, may grant

oral argument in support of a party's exceptions to a Recommended Order

submitted by a DOAH hearing officer. The matters before the Secretary for

consideration in this case are adequately set forth in the thorough joint

written Exceptions to Recommended Order filed by the Utility and the Department,

and oral argument is not necessary to clarify the issues. Accordingly, the

Utility's Request for Oral Argument is denied.

RULING ON RESPONDENTS' REQUEST FOR OFFICIAL RECOGNITION

The joint request filed by the Utility and the Department asks the

Secretary to take official recognition of a delegation order filed on July 12,

1984, by the Secretary of the former Department of Environmental Regulation.

Section 120.61, Florida Statutes, and Rule 60Q-2.020, Florida Administrative

Code, do provide for official recognition by hearing officers in formal

administrative proceedings of any matters that may be judicially noticed by the

courts of this state. This delegation order, however, was not submitted to the

Hearing Officer for official recognition in the DOAH formal proceedings.

In the process of considering exceptions to a recommended order of a DOAH

hearing officer, the Secretary performs a review function comparable to an

appellate court. Pursuant to Section 120.57(1)(b)10, Florida Statutes, the

Secretary may not reject or modify the findings of fact of the Hearing Officer,

unless she "first determines from a review of the complete record . . . that the

findings of fact were not based on competent substantial evidence" or that the

DOAH proceedings "did not comply with essential requirements of law." (emphasis

supplied) Thus, it would be improper for the Secretary to modify or reject any

of the findings of fact of the Hearing Officer in this case based on the

contents of a 1984 delegation order of the Secretary of DER which was not before

the Hearing Officer for consideration and is not a part of the record of the

DOAH proceedings on agency review. See Thornber v. City of Fort Walton Beach,

534 So.2d 754 (Fla. 1st DCA 1988); Rosenberg v. Rosenberg, 511 So.2d 593, 595

(Fla. 3d DCA 1987), footnote 3.

Respondents' Request for Official Recognition is denied.

RULINGS ON RESPONDENTS' EXCEPTIONS TO RECOMMENDED ORDER Exception I.

This exception take issue with a portion of the last sentence of Finding of

Fact 14 wherein the Hearing Officer found that the island chain is vulnerable to

flooding, "and some areas are more vulnerable [to flooding] than others." The

Respondents concede in their exceptions that the evidence before the Hearing

Officer established that that there have been occasions when waters from the

Gulf of Mexico have flowed over the low-lying Don Pedro Island Into Bocilla

Lagoon, a dredged canal located in the interior of the Island. Respondents

contend that there was no evidence that some portions of the Island are more

vulnerable to flooding than others.

The record does contain some evidence which would appear to support a

permissible inference by the Hearing Officer that some areas of Don Pedro Island

are more vulnerable to flooding than others. Petitioners' Composite Exhibit 11

(containing a collection of beachfront and aerial photographs) and and the

related testimony of Petitioners Betty Brenneman and Jim Duff seem to fairly

support a finding that the beach-front areas of Don Pedro Island immediately

adjacent to the waters of the Gulf of Mexico would appear to be more vulnerable

to flooding than more interior Island areas to the east, which may receive some

protection from a "high berm" along the Gulf side of the Island. (Tr. Vol. III,

16-42; 61-62)

Under Section 120.57(1)(b)10, Florida Statutes, the findings of fact of a

hearing officer may not be rejected or modified by a reviewing agency, unless

the agency first determines from a review of the complete record that such

findings were not based on competent substantial evidence or that the

proceedings on which the findings were based do not comply with the essential

requirements of law. Also, a reviewing agency is not free to modify or reject a

hearing officer's findings of fact to fit a conclusion desired by it or by a

party by interpreting the evidence or drawing inferences therefrom in a manner

different from permissible interpretations made and inferences drawn by a

hearing officer. Heifetz v. Dept. of Business Regulation, 475 So.2d 1277, 1281-

1282 (Fla. 1st DCA 1985)

Consequently, Respondents' Exception I. is denied. Exceptions II. and III.

In these exceptions, the Utility and the Department challenge the

correctness of the Hearing Officer's findings in the second and third sentences

of Finding of Fact 20 and in Finding of Fact 28. These findings of the Hearing

Officer relate to the purported failure of the Utility to establish that the

proposed location of the two new wells would be "safely outside" the Federal

Emergency Management Agency ("FEMA") velocity zone ("V-zone"), 4/ and the

failure to "provide reasonable assurances that the two proposed wells would be

protected from damage from the velocity wave action associated with the V-zone."

The Respondents contend in their exceptions that (1) there is no evidence of

record that any portion of Don Pedro Island is located in a FEMA V-zone, and (2)

there are no provisions in the rules of the Department or the Water District

applicable to construction of public water wells prohibiting the location of

drinking water wells within a FEMA V-zone.

The record reflects that the issue of the location of the two new proposed-

wells in relation to a FEMA V-zone was not interjected in this case by the

Petitioners or Respondents, but was first raised on direct questioning by the

Hearing Officer of the Utility's witness John Bosserman. (Tr. Vol. II., 79-80)

The Respondents' exceptions suggest that the Hearing Officer's questions

concerning the FEMA V-zone did not arise out of the record in this case, but

were the result of the Hearing Officer's personal knowledge acquired in another

unrelated administrative hearing not involving the parties in this proceeding.

I will not consider this suggestion of the Hearing Officer improperly taking

notice of facts outside the record because my review of the Recommended Order is

based entirely on the record as it has been presented to me in connection with

the Respondents' exceptions. See City of Miami v. St. Joe Paper Co., 347 So.2d

622, 624 (Fla. 3d DCA 1977)

In any event, I concur with the Respondents' argument that that the rules

of the Water District and the Department setting forth the criteria for location

of public water wells do not contain any provisions prohibiting the location of

drinking water wells in a FEMA V-zone. See Rules 40D-3.505 and 62-555.312,

Florida Administrative Code. Furthermore, I conclude in subsequent rulings in

this Final Order that the location of the two proposed wells as previously

permitted by the Water District, is not at issue in this proceeding. Thus, the

location of the two proposed wells relative to an alleged FEMA V-zone does not

appear to be relevant to the critical issue on this case of whether the Utility

has provided reasonable assurances that its proposed expansion of the treatment

capacity of its existing water plant will not violate applicable water quality

standards.

Even assuming, arguendo, that the existence of a FEMA V-zone was relevant

to the Utility's application at issue here, the record reflects that the

Respondents are correct in their conclusion that the uncontroverted evidence in

this case establishes that the Utility's existing water plant facility is not

located in a FEMA V-zone. This is acknowledged by the Hearing Officer in

Finding of Fact 20. In fact, the uncontroverted evidence shows that the

existing water plant structures are Located in a "A-17" zone, which is less

vulnerable to Gulf storm surge than a "V-zone". (Tr. Vol. II., 80; Utility Ex.

21) I also agree with the Respondents' observation that the record evidence

would not seem to support a permissible inference that the location of the two

proposed wells would be in a FEMA V-Zone due to the potential of a storm surge

from the Gulf, since it is undisputed that the proposed well locations are

eastward of and farther away from the Gulf than the existing water plant.

(Utility Ex. 16)

In view of the above, I conclude that the location of the proposed new

wells by the Utility relative to a FEMA V-zone is not a factor within the

purview of the applicable permitting rules for location of public water wells

and that the location of the wells is not at issue in this case. I also

determine that there is no competent substantial evidence of record to support a

finding by the Hearing Officer that the location of the two proposed wells would

be in a FEMA V-zone, even if this FEMA criteria was applicable to the subject

permit proceeding.

Accordingly, Respondents' Exceptions II. and III. are granted. Exception

IV.

This exception of Respondents objects to the findings in the first sentence

of Finding of Fact 28 wherein the Hearing Officer asserts that:

The two deficiencies in Applicant's proof

relate solely to the susceptibility of the

proposed wells to a significant risk of damage

from flooding and other disasters and the

location of the proposed wells relative to

areas least subject to localized flooding.

The Respondents argue that these findings are improper due to:

(1) The delegation from the Department to the Water District of the

permitting of construction of public water wells.

(2) Lack of competent substantial evidence of risk of damage to the wells.

(3) Improper shifting of burden of proof.

The issue of delegation to the Water District of the duty and authority for

the permitting of construction of public water wells is disposed of in the

succeeding consolidated rulings on Respondents' exceptions V. through XII. I am

of the view that grounds (2) and (3) above are meritorious for the following

reasons.

The Hearing Officer's unchallenged findings establish that the Utility's

existing water plant on Don Pedro Island is well-constructed, exceeds minimum

construction and operating requirements, and has been operated since the 1980's

in "an exemplary fashion". (Findings of Fact 3, 21, 22, 24, and 25) The

Hearing Officer's findings also acknowledge that the reverse osmosis filtration

technology currently utilized at the water plant and proposed to be expanded in

capacity in this permit proceeding "is one of the most effective at eliminating

contaminants from drinking water." (Finding of Fact 22) The Hearing Officer

further finds that the subject Application "proposes no material changes to the

existing water storage tanks, distribution system, or the size or location of

the building that houses the existing and proposed water treatment equipment."

(Finding of Fact 5)

A review of the transcript of testimony reflects that the Utility presented

the testimony of Pedro Mora, the licensed professional engineer who prepared the

subject Application for the Utility. Mr. Mora testified that the Application

complied with the Department rules and standards for the issuance of the permit

to expand the treatment capacity of the existing water plant. (Tr. Vol. I, 89-

90) Mr. Mora's testimony was corroborated by the expert testimony of two

Department permit review specialists who were involved in the review of the

Utility's Application. 5/ James Oni and Gary Maier both testified that, in

their opinion, the Utility's proposed project complied with all Department rules

and standards applicable to expansion of the drinking water system at the plant

on Don Pedro Island. (Tr. Vol. I, 137-138; 191-193)

Petitioners did not come forward with any expert witnesses at the DOAH

hearing to controvert the prior expert testimony presented in favor of the

Utility's permit request. 6/ Furthermore, the record reflects that Petitioners

failed to present any expert or lay testimony of prior contamination of the

water treated at the Utility's water plant due to flooding conditions since

commencement of operation in the 1980's. Thus, I conclude that the challenged

findings of the Hearing Officer in the first sentence of Finding Of Fact 28 are

based on an erroneous interpretation of the Department rules and are not based

on competent substantial evidence of record.

In view of the above and the conclusions in the following ruling,

Respondents' Exception IV. is granted

Exceptions V. through XII.

These exceptions of the Respondents take issue with various legal

conclusions and rule interpretations of the Hearing Officer in Conclusions of

Law 38, 39, 43, 44, 47, 48, 51, 55, 56, and 66. The Respondents also take

exception to the Hearing Officer's ultimate recommendation that the Department

enter a Final Order denying the Utility's application for expansion of the

capacity of its existing water treatment plant. The challenged legal

conclusions, rule interpretations, and recommendation of the Hearing Officer all

deal essentially with the same basic issue of the extent of the Department's

delegation to the Water District of responsibility for the permitting of public

water wells.

The Utility and the Department have consistently maintained the position

before the Hearing Officer and in these exceptions that the Department has

delegated to the Water District final authority and total responsibility to

issue permits for the location, construction, repair, and abandonment of public

water wells. It is undisputed that the Water District issued the two water well

permits to the Utility on February 8, 1995. Thus, these water well permits were

issued by the Water District prior to the commencement of this administrative

proceeding and even prior to the time that the Department issued its notice of

intent to issue the subject water treatment system expansion permit.

In the challenged Conclusions of Law identified above, the Hearing Officer

goes through a process of construing, in para materia, various rules of the

Department to support his interpretations and legal conclusions that the

Department has at least retained concurrent jurisdiction over the permitting of

public water wells. The Respondents contend in their exceptions that these rule

interpretations and resulting legal conclusions of the Hearing officer arc

erroneous and should be rejected. I concur with these exceptions of the

Respondents for the following reasons:

1. The controlling provisions of Section 373.308, Florida Statutes, impose

a mandatory duty on the Department to delegate to the various water management

districts the authority to implement programs for the issuance of permits for

the location, construction, repair, and abandonment of water wells. Respondents

correctly observe in their exceptions that prior to the year 1983, the statutory

language in this delegation statute was permissive rather than mandatory. See

Section 373.308, Florida Statutes (1981). The 1983 statutory change inserting

the critical term "shall" for the prior permissive term "may" seems to evidence

the clear intent of the Legislature to ensure that the permitting of public

water wells would thereafter be handled on a regional basis by the five water

management districts. This statutory mandate to delegate the permitting of

public water wells to the water management districts was carried out by the

Department through the adoption of implementing agency rules. See, e.g., Rule

62-555.510, Florida Administrative Code. 7/

2. The Department's public water treatment specialists James Oni and Gary

Maier both testified at the DOAH formal hearing that the Department does not

currently have anything to do with the issuance of water well permits and that

such permits are issued by the water management districts. (Tr. Vol. 1, 140,

198-199; Vol. III, 93). Both Mr. Oni and Mr. Maier were accepted by the Hearing

Officer in this case as experts in applying Department rules to drinking water

treatment plants. (Tr. Vol. 1, 133-135, 191). A review of the record does not

indicate the presence of any other competent substantial evidence to the

contrary.

3. The case law of Florida holds that great deference should be accorded

to administrative interpretations of statutes and rules that the agency is

required to enforce, and such administrative interpretations should not be

overturned unless clearly erroneous. See, e.g., Falk v. Beard, 614 So.2d 1086,

1089 (Fla. 1993); Dept. of Env. Regulation v. Goldring, 477 So.2d 532, 534 (Fla.

1985); Harloff v. City of Sarasota, 575 So.2d 1324, 1327 (Fla. 2d DCA 1991);

Reedy Creek Improvement Dist. v. Dept. of Env. Regulation, 486 So.2d 642, 648

(Fla. 1st DCA 1986). I conclude that this interpretations by Mr. Oni and Mr.

Maier of no current Department responsibility for the issuance of public water

well permits are not clearly erroneous. Rather, these interpretations appear to

be entirely consistent with the controlling provisions of Section 373.308,

Florida Statutes, and the Department's related rules dealing with delegation of

water well permitting to the water management districts.

4. The only apparent source for the proposition that the Department has

retained concurrent jurisdiction with the water management district for

permitting public water wells is the Hearing Officer's personal interpretations

of the statutory and rule provisions quoted from his Recommended Order. 8/ At

the administrative review level the agency head is free to exercise his or her

judgment and reject erroneous conclusions of law or rule interpretations of a

hearing officer. See, e.g., Section 120.57(1)(b)10, Florida Statutes;

MacPherson v. School Board of Monroe County, 505 So.2d 682 (Fla. 3d DCA 1987);

Siess v. Dept. of Health and Rehabilitative Services, 468 So.2d 478 (Fla. 2d DCA

1985); Alles v. Dept. of Professional Regulation, 423 So.2d 624 (Fla. 5th DCA

1982). I conclude that these challenged rule interpretations and related

conclusions of law of the Hearing Officer are erroneous and must be rejected.

Based on the above, Respondents' Exceptions V., VI., VII., VIII., IX., X.,

XI., and XII. are granted.

Conclusion

I share the Hearing Officer's concern with the fact that the Petitioners

apparently did not receive actual notice of the Utility's pending water well

applications prior to the permits being issued by the Water District in February

of 1995. I would note that the record does not contain any testimony or other

evidence that any of the Petitioners in this case actually filed a written

request with the Water District to receive a copy of any pending applications

affecting Don Pedro Island as seemingly authorized by the Water District's

rules. See, Rule 40D-1.603(4), Florida Administrative Code. In any event, I am

not aware of any precedent for the Department having the legal authority to deny

a water treatment system modification permit to an applicant because a permit

challenger did not have actual knowledge of a related water well permit

application having been filed with a water management district prior to its

issuance of the permit. I am also not aware of any legal authority for the

Department to reverse or modify the actions of a water management district in

issuing water well permits eight months prior, particularly in a formal

administrative proceeding in which the water management district is not even a

party.

It is therefore ORDERED:

A. The findings in paragraph 20 of the Recommended Order are modified by

deleting therefrom the second sentence.

B. The findings in paragraph 23 of the Recommended Order are rejected in

their entirety.

C. The findings in paragraph 28 of the Recommended Order are modified by

deleting therefrom the first sentence.

D. Conclusions of Law 38, 39, and 43 of the Recommended Order are rejected

their its entirety.

E. Conclusion of Law 44 of the Recommended Order is modified by deleting

therefrom the last sentence.

F. Conclusion of Law 47 of the Recommended Order is modified by deleting

therefrom the first sentence.

G. Conclusions of Law 48, 51, 55, 56, and 65 of the Recommended Order are

rejected in their entirety.

H. Conclusion of Law 66 of the Recommended Order is modified by deleting

therefrom the first sentence.

I. The Recommendation of the Hearing Officer on pages 22-23 of the

Recommended Order is rejected in its entirety.

J. All of the Hearing Officer's remaining findings of fact and conclusions

of law not expressly modified or rejected in paragraphs A through I above are

adopted and incorporated herein by reference.

K. The Department's South District Office is directed to ISSUE to the

applicant Bocilla Utilities, Inc., permit number 5084079 for expansion of its

existing water treatment plant on Don Pedro Island, subject to the conditions

set forth in the Notice of Intent to Issue.

Any party to this Order has the right to seek judicial review of the Order

pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of

Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the

clerk of the Department in the Office of General Counsel, 3900 Commonwealth

Boulevard, Tallahassee, Florida 32399-3000; and by filing a copy of the Notice

of Appeal accompanied by the applicable filing fees with the appropriate

District Court of Appeal. The Notice of Appeal must be filed within 30 days

from the date this Order is filed with the clerk of the Department.

DONE AND ORDERED this 9th day of October, 1995, in Tallahassee, Florida.

STATE OF FLORIDA DEPARTMENT

OF ENVIRONMENTAL PROTECTION

_________________________________

VIRGINIA B. WETHERELL

Secretary

Marjory Stoneman Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

FILING AND ACKNOWLEDGMENT

FILED, ON THIS DATE PURSUANT TO S. 120.52

FLORIDA STATUES WITH THE DESIGNATED

DEPARTMENT CLERK, RECEIPT OF WHICH

IS HEREBY ACKNOWLEDGED.

_______________________________

B. Reader. 10/09/95

DEPUTY CLERK DATE

ENDNOTES

1/ The term "Department" in this Final Order will include the former Department

of Environmental Regulation, a predecessor agency of the present Department of

Environmental Protection.

2/ The Utility and the Department will sometimes be referred to collectively as

the "Respondents".

3/ The Utility initially proposed locating the plant on the mainland and

conveying water through submerged pipes to Don Pedro Island. This proposal was

approved by the Army Corps of Engineers and the former Department of

Environmental Regulation, but the Trustees of the Internal Improvement Trust

Fund denied the Utility's request for an easement across sovereign submerged

lands. After failing to obtain a sovereign submerged land easement, the Utility

obtained permits to build a reverse-osmosis (RO) water plant at its present

location on the barrier island. Included among the permits was a permit from

the Department of Natural Resources dated September 11, 1985, allowing the

Utility to construct the water treatment plant and two underground concrete

water storage tanks up to 100 feet seaward of the coastal construction control

line.

4/ A "FEMA V-zone" is a term whose source is derived from the provisions of the

National Flood Insurance Program. In 44 CFR 59.1, a "FEMA V-zone" is indirectly

defined as a coastal "area of specific flood hazard extending from offshore to

the inland limit of a primary frontal dune along an open coast and any other

area subject to high velocity wave action from storms or seismic sources."

5/ James Oni is a licensed professional engineer in this state who holds the

title of Professional Engineer II with the Department. (Tr. Vol. 1. 132) Mr.

Oni's supervisor Gary Maier is also a Florida licensed professional engineer who

holds the title of Professional Engineer III with the Department. (Tr. Vol. 1,

190). Both Mr. Oni and Mr. Maier were accepted by the Hearing Officer as

experts in the operation of drinking water treatment plants and in applying

Department rules relating to drinking water treatment plants. (Tr. Vol. 1, 133-

135, 191)

6/ In the landmark case of Florida Dept. of Transportation v. J.W.C. Co., Inc.,

396 So.2d 778 (Fla. 1st DCA 1981), the court wrote a seminal opinion dealing

with the respective evidentiary burdens of the permit applicant and permit

challenger in a formal administrative hearing. The court concluded that once

the permit applicant has presented its evidence and has made a preliminary

showing of "reasonable assurances" that applicable Department standards will not

be violated, then the burden shifts to the permit challenger to go forward with

evidence to prove that the applicant is not entitled to the permit. Id. 789.

The court also observed that the permit challenger must present "contrary

evidence of equivalent quality" to that presented by the permit applicant. Id.

789. It is evident that the Petitioners in this case failed to go forward with

the presentation of controverting evidence of equivalent quality to that

presented by the Respondents' experts in favor of the permit.

7/ The Department retained jurisdiction to establish minimum standards for the

location, construction, repair, and abandonment of water wells throughout the

state as authorized by Section 373.308(4), Florida Statutes. These Department

minimum standards for water wells are currently set forth in Chapters 62-524,

62-531, 62-532 and 62-555, F.A.C. The Water District has expressly incorporated

these Department minimum water well standards into its own rules. See Rule 40D-

3.037(1), F.A.C.

8/ The Hearing Officer suggests in Conclusion of Law 65 that the location of

the two proposed water wells is at issue in this case because they are part of

the "plant site" as referred to in Department Rule 62-555.310, F.A.C. This

conclusion of the Hearing Officer is not compelling. The Hearing Officer's

unchallenged Finding of Fact 17 establishes that the proposed locations of the

two wells would be 200 and 450 feet respectively from the water treatment tanks.

The remoteness of the proposed water wells from the existing water plant

structure does not seem to support the Hearing Officer's conclusion. Also, the

viability of this conclusion is further undermined by the fact the Department

standards for location of the "plant site" and for location of public drinking

water wells are set forth in two separate rules. See, Rule 62-555.310 and 62-

55-312, F.A.C.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing Final Order has been sent by

U.S. Mail to:

Robert Starr

Post Office Box 5337

Grove City, Florida 34224

Betty Brenneman

Post Office Box 67

Placida, Florida 33946

M. Christopher Bruant

OERTEL HOFFMAN

Post Office Box 6507

Tallahassee, Florida 32314-6507

and by hand delivery to:

Thomas I. Mayton, Jr.

Assistant General Counsel

Department of Environmental Protection

3900 Commonwealth Blvd., M.S. 35

Tallahassee, Florida 32399-3000

Ann Cole, Clerk

and

Robert E. Meale, Hearing Officer

DIVISION OF ADMINISTRATIVE HEARINGS

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32300-1550

Jim Duff

Post Office Box 41

Placida, Florida 33946

this 10th day of October, 1995.

STATE OF FLORIDA DEPARTMENT

OF ENVIRONMENTAL PROTECTION

________________________________

J. TERRELL WILLIAMS

Assistant General Counsel

3900 Commonwealth Blvd., MS 35

Tallahassee, Florida 32399-3000

Telephone: [phone]