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.


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

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8ROBERT STARR, BETTY )

12BRENNEMAN, and JIM DUFF, )

17)

18Petitioners, )

20)

21vs. ) CASE NO. 95-1577

26)

27BOCILLA UTILITIES, INC. and )

32DEPARTMENT OF ENVIRONMENTAL )

36PROTECTION, )

38)

39Respondents. )

41______________________________)

42RECOMMENDED ORDER

44Final hearing was held in Port Charlotte, Florida, on July 31 and August 1,

581995, before Robert E. Meale, Hearing Officer of the Division of Administrative

70Hearings.

71APPEARANCES

72The parties were represented at the hearing as follows:

81For Petitioners: Robert Starr

85Post Office Box 5337

89Grove City, Florida 34224

93Betty Brenneman

95Post Office Box 67

99Placida, Florida 33946

102Jim Duff

104Post Office Box 41

108Placida, Florida 33946

111For Respondent M. Christopher Bryant

116Bocilla Oertel Hoffman

119Utilities: Post Office Box 6507

124Tallahassee, Florida 32314-6507

127For Respondent Thomas I. Mayton, Jr.

133Department of Assistant General Counsel

138Environmental Department of Environmental Protection

143Protection: 2600 Blair Stone Road

148Tallahassee, Florida 32399-2440

151STATEMENT OF THE ISSUE

155The issue in this case is whether Bocilla Utilities, Inc. is entitled to a

169public drinking water construction permit for the expansion of an existing

180reverse-osmosis water plant located on Don Pedro Island.

188PRELIMINARY STATEMENT

190By Application for a Public Drinking Water Facility Construction Permit

200filed January 26, 1995, Bocilla Utilities, Inc. requested a permit for the

212expansion of its water plant and the addition of two new water wells.

225By Intent to Issue dated February 27, 1995, the Department of Environmental

237Protection stated its intent to issue the permit.

245By Petition dated March 17, 1995, Petitioners challenged the issuance of

256the permit on several grounds.

261At the hearing, Bocilla Utilities called five witnesses and offered into

272evidence 22 exhibits. The Department of Environmental Protection called two

282witnesses and offered into evidence three exhibits. Petitioners called seven

292witnesses and offered into evidence 12 exhibits. All exhibits were admitted

303except Petitioners Exhibits 4, 5, and 7, which were proffered.

313The transcript was filed August 8, 1995. Rulings on timely filed proposed

325recommended orders are in the appendix.

331FINDINGS OF FACT

3341. Bocilla Utilities, Inc. (Applicant) was incorporated in the mid-1980s

344for the purpose of supplying water to a residential development being developed

356by some or all of the principals of the water utility. The residential

369development is on a bridgeless barrier island in Charlotte County.

3792. Applicant initially proposed locating the plant on the mainland with

390submerged pipes to the island. This proposal was approved by the Army Corps of

404Engineers and Department of Environmental Regulation, but the Trustees of the

415Internal Improvement Trust Fund denied Applicant's request for an easement

425across submerged state lands.

4293. After failing to obtain a submerged land easement, Applicant obtained

440the permits to build a reverse-osmosis (RO) water plant at its present location

453on the barrier island. Included among the permits was a permit from the

466Department of Natural Resources dated September 11, 1985, allowing Applicant to

477construct the water treatment plant, two underground concrete water storage

487tanks, and a tennis court on top of the tanks up to 100 feet seaward of the

504coastal construction control line.

5084. Applicant is a certificated utility that, since September 1994, has

519been regulated by the Public Service Commission. It was previously regulated by

531Charlotte County.

5335. By Application for a Public Drinking Water Facility Construction Permit

544filed January 26, 1995 (Application), Applicant requested a permit to expand the

556treatment capacity of its water plant from 30,000 gallons per day (gpd) to

570120,000 gpd. By installing the new treatment equipment in two stages, the plant

584would have an immediate capacity of 60,000 gpd. Applicant proposes no material

597changes to the existing water storage tanks, distribution system, or the size or

610location of the building that houses the existing and proposed water treatment

622equipment.

6236. The Application form asks Applicant to identify any well construction

634permits obtained from the water management district and to provide a map showing

647any sanitary hazards within 500 feet of each proposed well. The Application

659form requires Applicant's professional engineer to attest that the project

669complies with Chapter 62-555, Florida Administrative Code. The Engineering

678Report attached to the completed Application supplies the requested information,

688but explains that Applicant's hydrogeologist had not, as of the date of the

701report, obtained the well-construction permits from the water management

710district.

7117. By Intent to Issue dated February 27, 1995, the Department of

723Environmental Protection (DEP) gave notice of its intent to issue the requested

735permit. Noting that it has permitting jurisdiction under Section 403.861(9),

745Florida Statutes, and that the project is not exempt, DEP determined that a

758public drinking water construction permit is required for the proposed work.

769The Intent to Issue is based on DEP's

777belief that reasonable assurances have been

783provided to indicate that the proposed project

790will not adversely impact water quality and

797the proposed project will comply with the

804appropriate provisions of Florida Administrative

809Code Rules 62-4, 62-550, 62- 555 and 62-699.

8178. Petitioners timely objected to the issuance of the proposed permit.

828Petitioners reside in Applicant's certificated area on the barrier island. They

839presently obtain their water from private wells or cisterns, rather than

850Applicant. If the permit were granted so as to expand Applicant's production

862capacity, Petitioners would be more likely required to obtain water from

873Applicant due to Charlotte County's mandatory hookup ordinance.

8819. About a week before filing the Application, Applicant applied on

892January 20, 1995, to the Southwest Florida Water Management District (SWFWMD)

903for permits for the construction of the two wells included in the draft permit.

91710. SWFWMD granted these permits on February 8, 1995, about three weeks

929after receiving the applications. Consistent with its normal practice in

939granting well-construction permits, SWFWMD did not provide interested persons

948with a point of entry to challenge the permits.

95711. The SWFWMD permits provide in part:

964A. Compliance with state and local county

971health regulations as per Chapter 17-555,

977Florida Administrative Code (F.A.C.), is

982required via the Drinking Water System Permit.

989B. Compliance with Chapters 17-532 and 17- 555,

997F.A.C., on construction standards and grouting

1003procedures for Public Supply Wells shall be

1010followed.

1011* * *

1014D. This well site has been judged as satisfactory

1023based on the location and information provided to

1031[SWFWMD] at the time of the well site inspection.

1040. . .

1043* * *

10461. Public Supply Wells must meet certain setback

1054requirements from all potential sources of

1060contamination. To obtain and retain your Drinking

1067Water System Permit, please coordinate any future

1074development of the surrounding property within 200'

1081of your well site with the Charlotte County Health

1090Department.

1091* * *

109412. By letter dated February 14, 1995, from a SWFWMD representative to

1106Applicant's hydrogeological consultant, SWFWMD acknowledged that it granted

1114Applicant a setback variance of 100 feet from nearby septic systems in

1126permitting the two new wells. The letter states that the "variance is based upon

1140the known geohydrology of the area and the proposed construction of the wells,"

1153as well as an understanding that the "existing public system is working out with

1167no problems."

116913. A month later, a letter from a DEP engineer identifies various types

1182of sanitary hazards and implicitly ratifies the setback variance granted by

1193SWFWMD. By letter dated March 14, 1995, Gary Maier identified sanitary hazards

1205as septic tank systems, sewer lines, swimming pools and associated chemicals,

1216pet excretions, and residential chemicals such as pesticides, fertilizers,

1225paints, oils, and solvents. Mr. Maier's letter acknowledges that SWFWMD had

1236granted a variance from 200 feet to 100 feet "due to geologic and treatment

1250conditions," but cautions that "any further decrease in setbacks for sanitary

1261hazards would be imprudent."

126514. Applicant's water plant is located on Don Pedro Island, which is part

1278of an island chain consisting, from north to south, of Knight Island, Don Pedro

1292Island, and, usually, Little Gasparilla Island. The low-lying island chain

1302fronts the Gulf of Mexico on the west. The northern end of the island chain

1317abuts Lemon Bay on the east. Over the years, storms have opened and closed

1331passes at various points along the island chain. The island chain is vulnerable

1344to flooding, and some areas are more vulnerable than others.

135415. One of the historic passes is Bocilla Pass. The plant site area is

1368about a half mile south of this now-closed pass. The Gulf beaches on either side

1383of the point at which the Bocilla Pass emptied into the Gulf have suffered

1397considerable erosion in recent years, to the point that recently built homes

1409have been inundated by water and had to be removed or razed.

142116. The plant site area includes the building housing the water treatment

1433and other equipment, two 50,000-gallon storage tanks immediately to the west of

1446the building, the existing water supply well located just east of the building,

1459and the two proposed water supply wells located a short distance east and south

1473of the building.

147617. The existing storage tanks, which mark the westernmost extent of the

1488plant site area, are about 235 feet east of a pronounced erosion line along the

1503Gulf shore and are separated from the Gulf by South Gulf Boulevard. Immediately

1516adjacent to the tanks is the building housing the water treatment equipment. The

1529two proposed wells would be located about 200 and 450 feet south of the tanks.

154418. The plant site area is much closer to water on the east. The

1558southerly proposed well is about 12 feet west of the mean high water line of

1573Bocilla Lagoon, and the northerly proposed well is about 16 feet west of the

1587mean high water line of Bocilla Lagoon. The building housing the water

1599treatment equipment is further away from the water, but still less than 50 feet.

161319. Bocilla Lagoon is a long and narrow waterway that was dredged in a

1627north-south direction parallel to the Gulf shoreline. Bocilla Lagoon is closed

1638off by land less than a quarter of a mile south of the plant site area. The

1655lagoon runs to the north to connect to what remains of Bocilla Pass, which then

1670runs easterly a short distance to a dredged extension of Lemon Bay.

168220. The building housing the water treatment equipment and the storage

1693tanks are not located in the vulnerable FEMA V[elocity] zone. However, the

1705record does not establish the location of the proposed wells relative to the V-

1719zone. Testimony concerning the location of the V-zone relative to the water

1731plant establishes only that the building, not the two proposed wells, are safely

1744outside the V-zone. Nothing in the record establishes contour lines on the

1756barrier island in the vicinity of the plant site area or the elevation of the

1771land at the site of the two proposed wells.

178021. Applicant has recently upgraded the security of the storage tanks

1791through the addition of locks to the manholes. The installation of fences is

1804impractical and unnecessary because the tanks are topped by a six-inch,

1815reinforced slab of concrete that also serves as tennis courts.

182522. The proposed wells would be well constructed. They would extend 167

1837feet into a confined artesian aquifer. The concrete pressurized grouting

1847coupled with a potentiometric surface of seven feet make it unlikely that the

1860wells would be vulnerable to contaminants. During severe-storm conditions,

1869pumping would cease, leaving the system in its naturally pressurized state, so

1881that surface water could not easily flow down into the well. Additionally, the

1894RO filtration technology is one of the most effective at eliminating

1905contaminants from drinking water.

190923. However, failing to have shown that the two proposed wells are outside

1922the V-zone, Applicant has also failed to provide reasonable assurances that the

1934two proposed wells would be protected from damage from the velocity wave action

1947associated with the V-zone.

195124. Applicant has constructed and operated the water plant in an exemplary

1963fashion. Applicant has at all times met or exceeded applicable standards for

1975water quality, safety, and operations. Original construction exceeded minimum

1984requirements and added to the durability of the fixtures. The building housing

1996the water treatment equipment and hydropneumatic tank has been issued a

2007floodproofing certificate by a registered engineer. The certificate states that,

2017with human intervention in the form of bolting predrilled plywood boards over

2029openings, the plant is waterproofed to an elevation of 14 feet NGVD, which is

2043one foot higher than the FEMA-supplied base flood elevation of 13 feet NGVD.

205625. Applicant employs an operations manager with a Class A license rather

2068than one with merely a Class C license, even though only a Class C operator is

2084required for a water plant of this size. Also, Applicant maintains a low-level

2097chlorine indicator, even though not required to do so due to the small size of

2112the utility.

211426. The relevant sewage flows from the quantity of water that would be

2127drawn by each proposed well would be greater than 2000 gpd.

213827. Near the proposed wells are single- and multi-family residences served

2149by on-site sewage disposal systems, the above- described road, a swimming pool

2161on the other side of the road, an injection well, and the treatment plant at

2176which Applicant stores anti-scaling agents, ammonia, chlorine, and acid.

2185However, Applicant has shown that none of these items is within 100 feet of the

2200proposed wells. Bocilla Lagoon is not a sanitary hazard at this time.

221228. The two deficiencies in Applicant's proof relate solely to the

2223susceptibility of the proposed wells to a significant risk of damage from

2235flooding and other disasters and the location of the proposed wells relative to

2248areas least subject to localized flooding. In all other respects, such as fire

2261flow and security, Applicant has provided reasonable assurances that the

2271applicable criteria would be satisfied or that the proposed work would have no

2284bearing on the issue raised by Petitioners.

2291CONCLUSIONS OF LAW

229429. The Division of Administrative Hearings has jurisdiction over the

2304subject matter. Section 120.57(1), Florida Statutes. (All references to

2313Sections are to Florida Statutes. All references to Rules are to the Florida

2326Administrative Code.)

232830. Applicant and DEP stipulated to Petitioners' standing. Absent the

2338stipulation, Petitioners have standing as residents of the island chain who, as

2350a result of the proposed expansion of capacity, would be more likely to be

2364required to hookup to Applicant's expanded service due to Charlotte County's

2375mandatory hookup ordinance.

237831. Rule 62-555.530(1) requires DEP to evaluate each application for a

2389public water supply permit for compliance with applicable water quality

2399standards, which are not at issue in this case, and for "[a]dequate engineering

2412design complying with acceptable engineering principles as established in Rule

242262- 555.310 through .360, F.A.C." Rule 62-555.530(2) provides that DEP "shall

2433either issue or deny a permit pursuant to Chapter 120, F.S."

244432. Rule 62-555.300 explains the purpose of Rules 62- 555.310 through .360

2456as follows:

2458The quality of drinking water when it ultimately

2466reaches the consumer depends on the construction,

2473operation, and maintenance of a public water

2480system. The following rules establish requirements

2486for construction, operation, and maintenance of a

2493public water system and cover all aspects of a

2502public water system from collection through

2508treatment, storage, and distribution.

251233. Two rules are relevant to this case. Rule 62-555.310 provides:

2523Raw water shall be obtained from the most desirable

2532source that is available, and an effort shall be

2541made to prevent or control contamination of the

2549source. The plant site area shall not be subject

2558to a significant risk from earthquakes, floods,

2565fires, or other disasters which could cause a

2573breakdown of the public water system or any

2581portion thereof.

258334. Rule 62-555.312 states:

2587The following setback distances around public

2593drinking water supply wells apply to newly

2600constructed wells. However, the 100 and 200

2607foot setback distances which have been in effect

2615since November 9, 1977 and December 13, 1983,

2623respectively remain in effect.

2627(1) Public drinking water supply wells that

2634serve water systems having total sewage flows

2641greater than 2,000 gallons per day shall be

2650placed no closer than 200 feet from on-site

2658sewage disposal systems (septic tanks) other

2664than land application of reclaimed water areas.

2671Public drinking water supply wells serving water

2678systems having total sewage flows of less than or

2687equal to 2,000 gallons per day shall be placed no

2698closer than 100 feet from on-site sewage disposal

2706systems (septic tanks) other than land application

2713of reclaimed water areas.

2717* * *

2720(4) Public drinking water supply wells shall

2727be located no closer than 100 feet from other

2736sanitary hazards as defined in Rule 62- 550.200,

2744F.A.C.

2745(5) Public drinking water supply wells shall

2752be located on ground least subject to localized

2760flooding, and as far as is practical when the

2769direction of ground water slope or movement is

2777known, wells shall be located on the upstream

2785side of sanitary hazards.

2789(6) [DEP] or appropriate water management

2795district shall decrease or increase these

2801distances when approving well construction permits,

2807if justified, by the presence or absence of

2815natural barriers such as impermeable geological

2821strata, adequate protection by treatment, or

2827proper construction practices.

283035. The remaining rules in Rules 62-555.310 through .360 are not directly

2842relevant to this case. These rules govern the location of water mains; well-

2855drilling methods (Rule 62- 555.315); water treatment, storage, and

2864distribution; fluoridation; cleaning and disinfection; post-construction

2870certification by DEP; operation and maintenance; water testing; and cross-

2880connections.

288136. The rules do not define "plant site area." Rule 62- 550.200(55)

2893defines "sanitary hazard" as a "physical condition which involves or affects any

2905part of a drinking water system or the raw water source, and that creates an

2920imminent or potentially serious risk to the health of any person who consumes

2933water from that system."

293737. Applicant and DEP raise two major contentions concerning the scope of

2949review that DEP should properly give the Application. The first argument is

2961that DEP has delegated to SWFWMD the responsibility for ensuring that the two

2974proposed wells are suitably located.

297938. The statutes and rules do not clearly divide responsibilities between

2990DEP and the water management districts in permitting public supply water wells.

3002But DEP cannot defer this decision entirely to SWFWMD for several reasons.

301439. Even if DEP delegates to the water management districts the authority

3026over the location of public water supply wells, DEP does not necessarily deprive

3039itself of authority over the location of public supply wells. Section

3050373.308(1) authorizes DEP to delegate to the water management districts the

3061authority for issuing permits for the "location [and] construction" of water

3072wells. But Section 373.308(4) adds that this delegation is not necessarily

3083absolute:

3084Notwithstanding the provision in this section

3090for delegation of authority to a water management

3098district, [DEP] may prescribe minimum standards

3104for the location [and] construction of water

3111wells throughout all or parts of the state, as

3120may be determined by [DEP].

312540. Sections 403.852(12)(d)2, 403.853(1)(a), and 403.861(7) and (9)

3133require DEP to adopt rules concerning public drinking water supplies.

3143Exercising this authority, DEP adopted Rules 62- 555.310 through 62-555.360 and

315462-555.530.

315541. DEP's rules acknowledge the role of the water management districts in

3167issuing permits to construct public water supply wells. Rule 62-555.510(2)

3177requires:

3178Before construction of a public water supply well,

3186the licensed water well contractor shall obtain an

3194application form from and apply to the appropriate

3202water management district for a permit to construct

3210the well in accordance with Rule 62-555.315 and

3218Chapter 62-532, F.A.C., and Chapter 373, Part III,

3226F.S.

322742. The reference to Rule 62-555.315, which is a detailed rule governing

3239well-drilling methods, arguably stresses the role of the water management

3249districts in reviewing technical well- construction specifications. But the

3258omission of a similar express reference to the location of wells undermines the

3271absolute-delegation argument of Applicant and DEP on this point.

328043. In any event, nothing in the rules implies that DEP must defer

3293absolutely to a water management district in applying the locational criteria

3304governing water wells, as set forth in Rule 62-555.312. DEP's rules contemplate

3316that the construction of a public water supply well will require a permit from

3330the water management district and a permit from DEP.

333944. Rule 62-555.520 requires the applicant, prior to "commencing

3348construction or alteration," to use the same form on which the Application was

3361made in this case to apply "to [DEP]" for a construction permit. The

3374application form suggests that DEP anticipates an applicant will obtain a well-

3386construction permit from a water management district, but that DEP will also

3398undertake its own review of this information, at least as to the location of the

3413well.

341445. For instance, DEP's application form requests a map showing sanitary

3425hazards within 500 feet of the proposed well. If the water management district

3438permit resolved all siting questions of the proximity of the water well to

3451sanitary hazards, DEP would not require this information on its application

3462form.

346346. The only textual support for the argument of Applicant and DEP is Rule

347762-555.312(6), which states that DEP "or" the water management district may

3488change setbacks for good cause. This language does not necessarily preclude DEP

3500from exercising jurisdiction over the location of public water supply wells. In

3512any event, setbacks are only part of the locational criteria, and the

3524disjunctive reference to the water management district or DEP is too slim a

3537basis on which to conclude that, in issuing public water supply construction

3549permits, DEP is prohibited from considering the locational criteria in Rule 62-

3561555.312.

356247. The argument of Applicant and DEP that DEP cannot consider locational

3574criteria fails for another reason. If the responsibility for applying the

3585locational criteria fell exclusively to the water management district,

3594substantially affected persons such as Petitioners would lose their right, under

3605Chapter 120, Florida Statutes, to a formal hearing on these issues prior to the

3619issuance of the public water supply construction permit. Without regard to

3630whether these rights are extended by constitutional, statutory, or decisional

3640law, DEP's Rule 62-555.530(2) expressly guarantees that the issuance and denial

3651of permits will be governed by Chapter 120, Florida Statutes.

366148. Thus, regardless whether SWFWMD applied the locational criteria of

3671Rules 62-555.310 through 62-555.360 in issuing the two well-construction

3680permits, DEP must also apply these criteria in deciding whether to issue the

3693public water supply construction permit sought in this case.

370249. The setback for sanitary hazards is 100 feet except that it is, in

3716this case, 200 feet for septic tanks. DEP properly approved SWFWMD's reduction

3728of setbacks from sanitary hazards from 200 feet to 100 feet based on the depth

3743of the proposed wells; the proposed method of construction; the use of a

3756confined, well pressurized artesian aquifer, and the effectiveness of the

3766proposed RO treatment method. However, no reduction below 100 feet is

3777permissible.

377850. Applicant has provided reasonable assurances that the two proposed

3788wells satisfy the setback requirements of Rule 62- 555.312(1), (4), and (6).

3800There are no sanitary hazards within 100 feet of either proposed well. The only

3814potential sanitary hazard within 100 feet of either well is Bocilla Lagoon, but

3827the record does not suggest that water quality of the lagoon constitutes a

3840sanitary hazard.

384251. However, Applicant has failed to provide reasonable assurances that

3852the location of the proposed wells satisfies the requirements of Rule 62-

3864555.312(5), which is the only part of Rule 62-555.312 not addressing setbacks

3876from sanitary hazards.

387952. Rule 62-555.312(5) contains two requirements. First, public drinking

3888water supply wells must be located on "ground least subject to localized

3900flooding." Second, "as far as practical when the direction of ground water

3912slope of movement is known," wells must be located on the upstream side of

3926sanitary hazards.

392853. The second part of subsection (5) is not applicable. This part of the

3942rule is qualified by the clause, "as far as is practical when the direction of

3957ground water slope or movement is known." There is no indication that the

3970direction of ground water slope is known, so the second part of the rule has no

3986bearing on this case. In any event, the second part of the rule is not only

4002conditioned by knowledge of the direction of groundwater slope or movement, but

4014also by the qualification that the location is governed by the rule requirement

4027only "as far as is practical."

403354. By contrast, the first part of subsection (5) is not conditioned upon

4046any knowledge of local conditions or the qualification of practicality. The

4057first part of the rule says that public drinking water supply wells shall be

4071located on "ground least subject to localized flooding."

407955. The first part of Rule 62-555.312(5) thus requires a determination

4090that, if the local area is flooded, then the proposed wells must be on ground

4105that is the last site within the local area to flood. The first part of

4120subsection (5) ignores widespread flooding, but not localized flooding.

412956. Absolutely nothing in the record indicates that the proposed wells are

4141on ground least subject to localized flooding. DEP has not disclosed its

4153interpretation of the phrases, "least subject" and "localized flooding." The

4163close proximity of the proposed wells to the mean high water line of Bocilla

4177Lagoon demands that Applicant and DEP address the location of the proposed wells

4190with respect to the extent to which they would be subject to localized flooding.

4204Applicant has not provided reasonable assurances as to this requirement of Rule

421662- 555.312(5).

421857. The proposed wells would be well constructed and, due to their

4230potentiometric surfaces, relatively unsusceptible to contamination. But Rule

423862-555.312(5) focuses on susceptibility to localized flooding and makes no

4248exceptions for quality constructed wells, pressurized aquifers, or effective

4257filtration systems. Subsection (5) addresses the safety of public water supply

4268wells by ensuring that they are placed in areas least subject to localized

4281flooding, rather than relying entirely on quality well construction, positively

4291pressurized aquifers, and RO filtration systems.

429758. Rule 62-555.310 also supplies locational criteria for the "plant site

4308area," which includes the building and its contents, including the proposed new

4320water treatment equipment. Applicant and DEP argue that the locational criteria

4331of Rule 62- 555.310 are inapplicable to the proposed expansion involving the

4343water treatment equipment. They point out that Applicant is seeking a permit

4355for the expansion--not initial construction--of a water treatment plant.

436459. The Application is for a permit to quadruple capacity to 120,000 gpd

4378through the replacement of RO filters and the addition of two new supply wells.

4392Rule 62-555.310 states that the "plant site area shall not be subject to a

4406significant risk from . . . floods, fires, or other disasters which could cause

4420a breakdown of the public water system or any portion thereof."

443160. Mr. Maier conceded that a vast plant expansion would require review of

4444the plant site area. His reasoning was that such an expansion would involve the

4458removal and addition of considerable equipment and would represent a fundamental

4469change in the plant. But he contended that the present expansion was not so

4483extensive as to trigger such review.

448961. Obviously, there are alterations to water plants that do not add to

4502capacityeatment systems may be changed or updated, and storage tanks and

4513distribution systems may be replaced. Earlier permits for the plant site area

4525entitled the permittee to construct and operate a plant of the permitted

4537capacity at a specific area. Thus, reviewing later requests for permits to

4549alter treatment systems, storage tanks, and distribution systems, without

4558increasing capacity, should not normally trigger reconsideration of the original

4568approval of the location of the plant site area. Request for permits to alter

4582without any increase in capacity means that service remains the same in terms of

4596the extent of public reliance on specific quantities of water, and the risk

4609remains the same in terms of the extent of public harm in the event of the

4625interruption of such service.

462962. In this case, Applicant seeks a permit to alter a system by increasing

4643its capacity by four times. This means that the public reliance on Applicant's

4656water is increased four times, and the public harm in the event of the

4670interruption of service is increased four times. The assessment of risk, by

4682rule, addresses the consequence of the breakdown in the public water system and

4695necessarily the extent of public harm done by such a breakdown. When

4707Applicant's water plant was originally permitted, an interruption in service

4717harmed one-quarter of the public that would come to rely on the expanded

4730capacity for which Applicant now seeks approval.

473763. Thus, Rule 62-555.310 applies to the Application and the plant site

4749area subject to alteration.

475364. Applicant has provided reasonable assurances that the new water

4763treatment equipment is not subject to a significant risk from floods, fires, or

4776other disasters that could cause a breakdown of the public water system or any

4790portion thereof. The risk to the building and its contents from flooding is

4803adequately attenuated by the location of the building outside of the more

4815dangerous V-zone and its compliance with FEMA floodproofing standards.

4824Notwithstanding some evidence concerning inadequate fire flows, there is no real

4835reason to doubt that the plant site area suffers a significant risk of damage

4849from fire. As Applicant pointed out, seawater to fight fires is plentiful on

4862the island.

486465. Rule 62-555.310 also applies to the two proposed wells, which, in this

4877case, are part of the "plant site area." The rule does not refer only to the

"4893plant" itself, but rather extends to the entire "plant site area." The purpose

4906of the rule is to prevent breakdowns in the public water supply system, of which

4921a crucial part is the water supply well. In this case, the inclusion of the

4936proposed wells in the plant site area is reinforced by their close proximity to

4950the water treatment equipment, storage tanks, and pumps.

495866. Applicant has failed to provide reasonable assurances that the

4968proposed wells are not subject to significant risk of damage from flooding or

4981other disasters, including wave action. Quality well construction, a pressurized

4991aquifer, and an RO treatment system tend to reduce the susceptibility of the

5004wells to damage from flooding and possibly wave action. But Applicant has not

5017provided reasonable assurances that the remaining risk satisfies the criteria of

5028Rule 62-555.310 in terms of the extent of risk and resulting damage.

504067. Applicant's request for attorneys' fees and costs is denied.

5050RECOMMENDATION

5051It is

5053RECOMMENDED that the Department of Professional Regulation enter a final

5063order denying the application of Bocilla Utilities, Inc. for a public water

5075supply construction permit.

5078ENTERED on August 25, 1995, in Tallahassee, Florida.

5086___________________________________

5087ROBERT E. MEALE

5090Hearing Officer

5092Division of Administrative Hearings

5096The DeSoto Building

50991230 Apalachee Parkway

5102Tallahassee, Florida 32399-1550

5105(904) 488-9675

5107Filed with the Clerk of the

5113Division of Administrative Hearings

5117on August 25, 1995.

5121APPENDIX

5122Rulings on Respondents' Proposed Findings

51271-4: adopted or adopted in substance.

51335: rejected as irrelevant and repetitious.

51396-7 (except last sentence): adopted or adopted in substance.

51487 (last sentence): rejected as unsupported by the appropriate weight of

5159the evidence and legal argument.

51648 (except last sentence): rejected as subordinate, recitation of

5173testimony, and irrelevant.

51768 (last sentence): adopted or adopted in substance.

51849: rejected as irrelevant.

518810: adopted or adopted in substance, except to extent of legal argument as

5201to effect of action of SWFWMD in granting variance.

521011-12: rejected as irrelevant.

521413 (except last sentence): adopted or adopted in substance.

522313 (last sentence): rejected as irrelevant.

522914-17 (except last sentence): adopted or adopted in substance.

523817 (last sentence): rejected as legal argument.

524518-21: adopted or adopted in substance.

525122: rejected as unnecessary.

525523: adopted or adopted in substance as to protection from only sanitary

5267hazards.

526824-26: adopted or adopted in substance as to description of aquifer,

5279proposed well construction, and efficiency of RO filtration process, but not as

5291reasons in support of Paragraph 23.

529727 (first sentence): adopted or adopted in substance.

530527 (remainder): rejected as unnecessary.

531028: adopted or adopted in substance.

531629: rejected as unnecessary.

532030-31: adopted or adopted in substance.

532632: rejected as irrelevant.

533033-40: rejected as unsupported by the appropriate weight of the evidence.

5341COPIES FURNISHED:

5343Virginia B. Wetherell, Secretary

5347Department of Environmental Protection

5351Twin Towers Office Building

53552600 Blair Stone Road

5359Tallahassee, FL 32399-2400

5362Kenneth Plante, General Counsel

5366Department of Environmental Protection

5370Twin Towers Office Building

53742600 Blair Stone Road

5378Tallahassee, FL 32399-2400

5381Robert Starr

5383P.O. Box 5337

5386Grove City, FL 34224

5390Betty Brenneman

5392P.O. Box 67

5395Placida, FL 33946

5398Jim Duff

5400P.O. Box 41

5403Placida, FL 33946

5406M. Christopher Bryant

5409Oertel Hoffman

5411P.O. Box 6507

5414Tallahassee, FL 32314-6507

5417Thomas I. Mayton, Jr.

5421Assistant General Counsel

5424Department of Environmental Protection

54282600 Blair Stone Road

5432Tallahassee, FL 32399-2440

5435NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

5441All parties have the right to submit written exceptions to this Recommended

5453Order. All agencies allow each party at least 10 days in which to submit

5467written exceptions. Some agencies allow a larger period within which to submit

5479written exceptions. You should contact the agency that will issue the final

5491order in this case concerning agency rules on the deadline for filing exceptions

5504to this Recommended Order. Any exceptions to this Recommended Order should be

5516filed with the agency that will issue the final order in this case.

5529=================================================================

5530AGENCY FINAL ORDER

5533=================================================================

5534STATE OF FLORIDA

5537DEPARTMENT OF ENVIRONMENTAL PROTECTION

5541ROBERT STARR, BETTY BRENNEMAN,

5545and JIM DUFF,

5548Petitioners,

5549vs. OGC Case No. 95-0665

5554DOAH Case No. 95-1577

5558BOCILLA UTILITIES, INC. and

5562DEPARTMENT OF ENVIRONMENTAL

5565PROTECTION,

5566Respondents.

5567_______________________________/

5568FINAL ORDER

5570On August 25, 1995, a Hearing Officer with the Division of Administrative

5582Hearings (hereafter "DOAH"), submitted his Recommended Order to the Respondent,

5593Department of Environmental Protection (hereafter "Department") 1/ Copies of

5603the Recommended Order were served upon the Petitioners, Robert Starr, Betty

5614Brenneman, and Jim Duff (hereafter "Petitioners"), and upon the Respondent,

5625Bocilla Utilities, Inc. (hereafter "Utility"). A copy of the Recommended Order

5637is attached hereto as Exhibit A.

5643On September 11, the Respondents 2/ timely filed joint Exceptions to

5654Recommended Order and a joint Request for Official Recognition. The Utility

5665also simultaneously filed a Request for Oral Argument. No exceptions or

5676responses were filed by the pro se Petitioners. The matter is now before the

5690Secretary of the Department for final agency action.

5698BACKGROUND

5699The Utility is a private utility owning and operating an existing public

5711drinking water plant located on Don Pedro Island. 3/ Don Pedro Island is a

5725bridgeless barrier island in the Gulf of Mexico and is located within the

5738geographical boundaries of Charlotte County, Florida. The Utility is currently

5748regulated by the Public Service Commission and provides water to customers of a

5761residential development on the island. Petitioners live on Don Pedro Island and

5773have residences within the Utility's certificated area, but are not present

5784customers of the Utility. Petitioners presently obtain their water from private

5795wells or cisterns, but may be required to obtain water from the Utility in the

5810future due to Charlotte County's mandatory hookup ordinance.

5818The Utility filed an Application for a Public Drinking Water Facility

5829Construction Permit (hereafter "Application") with the Department on January 26,

58401995. (Utility Ex. 1) The Application requested a permit to expand the

5852treatment capacity of its water plant from 30,000 gallons per day (gpd) to

5866120,000 gpd. By installing the new treatment equipment in two stages, the plane

5880would have an immediate capacity of 60,000 gpd. The Application proposed no

5893material changes to the existing water storage tanks, distribution system, or

5904the size or location of the building that houses the existing and proposed water

5918treatment equipment.

5920On February 27, 1995, the Department executed a Notice of Intent to Issue

5933the requested permit to the Utility. (Utility Ex. 8) The Notice of Intent to

5947Issue observed that the Department has permitting jurisdiction under Section

5957403.861(9), Florida Statutes, and that the project was not exempt. The Notice

5969of Intent to Issue also contained a Department determination that a public

5981drinking water construction permit is required for the proposed work. The

5992Intent to Issue the permit was based on the Department's stated "belief that

6005reasonable assurances have been provided to indicate that the proposed project

6016will not adversely impact water quality and the proposed project will comply

6028with the appropriate provisions of Florida Administrative Code Rules 62-4, 62-

6039550, 62-555 and 62-669." Petitioners subsequently filed a timely petition

6049challenging the issuance of the proposed permit and requesting a formal hearing.

6061About a week before filing the Application with the Department, the Utility

6073also applied to the Southwest Florida Water Management District (hereafter

"6083Water District") for permits to construct two new water wells referred to in

6097the Application filed with the Department. The Water District granted these

6108well permits on February 8, 1995. The Water District apparently did not provide

6121the Petitioners with a point of entry to challenge the water well permits.

6134The Utility plant site area includes the building housing the water

6145treatment and other equipment, two 50,000-gallon storage tanks immediately to

6156the west of the building, the existing water supply well located just east of

6170the building, and the two proposed water supply wells located a short distance

6183east and south of the building. The existing storage tanks, which mark the

6196westernmost extent of the plant site area, are about 235 feet east of a

6210pronounced erosion line along the Gulf shore and are separated from the Gulf by

6224South Gulf Boulevard. Immediately adjacent to the tanks is the building housing

6236the water treatment equipment. The two proposed wells would be located about

6248200 and 450 feet south of the tanks. Near the proposed wells are single and

6263multi-family residences served by on-site sewage disposal systems.

6271A formal administrative hearing was held on July 31 and August 1, 1995,

6284before DOAH Hearing Officer Robert E. Meale (hereafter "Hearing Officer"). Each

6296of the parties presented the testimony of witnesses and had various exhibits

6308admitted into evidence. Proposed Recommended Order were filed by the parties

6319after the hearing and the Hearing Officer subsequently entered his Recommended

6330Order on August 25, 1995.

6335The Hearing Officer found that the Utility had failed to establish that the

6348two proposed wells (1) would not be susceptible to a significant risk of damage

6362from flooding and other disasters and (2) were to be located on ground least

6376subject to localized flooding. In view of these critical findings, the Hearing

6388Officer concluded that the Utility had failed to provide reasonable assurances

6399that its proposed water treatment expansion project would not violate the

6410provisions of Rules 62-555.310 and 62-555.312(5), Florida Administrative Code.

6419The Hearing Officer also made a related critical ruling of law that the

6432Department had not totally delegated to the Water District all responsibility

6443and authority to consider questions related to the adequacy of proposed water

6455wells identified in the wager treatment system-expansion application before the

6465Department for review. The Hearing Officer ultimately recommended that the

6475Department enter a Final Order denying the Utility's application for a permit to

6488expand the water treatment capacity of its existing water treatment plant on Don

6501Pedro Island.

6503RULING ON UTILITY'S REQUEST FOR ORAL ARGUMENT

6510The Utility filed a Request for Oral Argument before the Secretary in

6522connection with the agency review of its exceptions to the Hearing Officer's

6534Recommended Order. The provisions of Rule 62-103.200(3), Florida Administrative

6543Code, state that the Secretary of the Department, in her discretion, may grant

6556oral argument in support of a party's exceptions to a Recommended Order

6568submitted by a DOAH hearing officer. The matters before the Secretary for

6580consideration in this case are adequately set forth in the thorough joint

6592written Exceptions to Recommended Order filed by the Utility and the Department,

6604and oral argument is not necessary to clarify the issues. Accordingly, the

6616Utility's Request for Oral Argument is denied.

6623RULING ON RESPONDENTS' REQUEST FOR OFFICIAL RECOGNITION

6630The joint request filed by the Utility and the Department asks the

6642Secretary to take official recognition of a delegation order filed on July 12,

66551984, by the Secretary of the former Department of Environmental Regulation.

6666Section 120.61, Florida Statutes, and Rule 60Q-2.020, Florida Administrative

6675Code, do provide for official recognition by hearing officers in formal

6686administrative proceedings of any matters that may be judicially noticed by the

6698courts of this state. This delegation order, however, was not submitted to the

6711Hearing Officer for official recognition in the DOAH formal proceedings.

6721In the process of considering exceptions to a recommended order of a DOAH

6734hearing officer, the Secretary performs a review function comparable to an

6745appellate court. Pursuant to Section 120.57(1)(b)10, Florida Statutes, the

6754Secretary may not reject or modify the findings of fact of the Hearing Officer,

6768unless she "first determines from a review of the complete record . . . that the

6784findings of fact were not based on competent substantial evidence" or that the

6797DOAH proceedings "did not comply with essential requirements of law." (emphasis

6808supplied) Thus, it would be improper for the Secretary to modify or reject any

6822of the findings of fact of the Hearing Officer in this case based on the

6837contents of a 1984 delegation order of the Secretary of DER which was not before

6852the Hearing Officer for consideration and is not a part of the record of the

6867DOAH proceedings on agency review. See Thornber v. City of Fort Walton Beach,

6880534 So.2d 754 (Fla. 1st DCA 1988); Rosenberg v. Rosenberg, 511 So.2d 593, 595

6894(Fla. 3d DCA 1987), footnote 3.

6900Respondents' Request for Official Recognition is denied.

6907RULINGS ON RESPONDENTS' EXCEPTIONS TO RECOMMENDED ORDER Exception I.

6916This exception take issue with a portion of the last sentence of Finding of

6930Fact 14 wherein the Hearing Officer found that the island chain is vulnerable to

6944flooding, "and some areas are more vulnerable [to flooding] than others." The

6956Respondents concede in their exceptions that the evidence before the Hearing

6967Officer established that that there have been occasions when waters from the

6979Gulf of Mexico have flowed over the low-lying Don Pedro Island Into Bocilla

6992Lagoon, a dredged canal located in the interior of the Island. Respondents

7004contend that there was no evidence that some portions of the Island are more

7018vulnerable to flooding than others.

7023The record does contain some evidence which would appear to support a

7035permissible inference by the Hearing Officer that some areas of Don Pedro Island

7048are more vulnerable to flooding than others. Petitioners' Composite Exhibit 11

7059(containing a collection of beachfront and aerial photographs) and and the

7070related testimony of Petitioners Betty Brenneman and Jim Duff seem to fairly

7082support a finding that the beach-front areas of Don Pedro Island immediately

7094adjacent to the waters of the Gulf of Mexico would appear to be more vulnerable

7109to flooding than more interior Island areas to the east, which may receive some

7123protection from a "high berm" along the Gulf side of the Island. (Tr. Vol. III,

713816-42; 61-62)

7140Under Section 120.57(1)(b)10, Florida Statutes, the findings of fact of a

7151hearing officer may not be rejected or modified by a reviewing agency, unless

7164the agency first determines from a review of the complete record that such

7177findings were not based on competent substantial evidence or that the

7188proceedings on which the findings were based do not comply with the essential

7201requirements of law. Also, a reviewing agency is not free to modify or reject a

7216hearing officer's findings of fact to fit a conclusion desired by it or by a

7231party by interpreting the evidence or drawing inferences therefrom in a manner

7243different from permissible interpretations made and inferences drawn by a

7253hearing officer. Heifetz v. Dept. of Business Regulation, 475 So.2d 1277, 1281-

72651282 (Fla. 1st DCA 1985)

7270Consequently, Respondents' Exception I. is denied. Exceptions II. and III.

7280In these exceptions, the Utility and the Department challenge the

7290correctness of the Hearing Officer's findings in the second and third sentences

7302of Finding of Fact 20 and in Finding of Fact 28. These findings of the Hearing

7318Officer relate to the purported failure of the Utility to establish that the

7331proposed location of the two new wells would be "safely outside" the Federal

7344Emergency Management Agency ("FEMA") velocity zone ("V-zone"), 4/ and the

7358failure to "provide reasonable assurances that the two proposed wells would be

7370protected from damage from the velocity wave action associated with the V-zone."

7382The Respondents contend in their exceptions that (1) there is no evidence of

7395record that any portion of Don Pedro Island is located in a FEMA V-zone, and (2)

7411there are no provisions in the rules of the Department or the Water District

7425applicable to construction of public water wells prohibiting the location of

7436drinking water wells within a FEMA V-zone.

7443The record reflects that the issue of the location of the two new proposed-

7457wells in relation to a FEMA V-zone was not interjected in this case by the

7472Petitioners or Respondents, but was first raised on direct questioning by the

7484Hearing Officer of the Utility's witness John Bosserman. (Tr. Vol. II., 79-80)

7496The Respondents' exceptions suggest that the Hearing Officer's questions

7505concerning the FEMA V-zone did not arise out of the record in this case, but

7520were the result of the Hearing Officer's personal knowledge acquired in another

7532unrelated administrative hearing not involving the parties in this proceeding.

7542I will not consider this suggestion of the Hearing Officer improperly taking

7554notice of facts outside the record because my review of the Recommended Order is

7568based entirely on the record as it has been presented to me in connection with

7583the Respondents' exceptions. See City of Miami v. St. Joe Paper Co., 347 So.2d

7597622, 624 (Fla. 3d DCA 1977)

7603In any event, I concur with the Respondents' argument that that the rules

7616of the Water District and the Department setting forth the criteria for location

7629of public water wells do not contain any provisions prohibiting the location of

7642drinking water wells in a FEMA V-zone. See Rules 40D-3.505 and 62-555.312,

7654Florida Administrative Code. Furthermore, I conclude in subsequent rulings in

7664this Final Order that the location of the two proposed wells as previously

7677permitted by the Water District, is not at issue in this proceeding. Thus, the

7691location of the two proposed wells relative to an alleged FEMA V-zone does not

7705appear to be relevant to the critical issue on this case of whether the Utility

7720has provided reasonable assurances that its proposed expansion of the treatment

7731capacity of its existing water plant will not violate applicable water quality

7743standards.

7744Even assuming, arguendo, that the existence of a FEMA V-zone was relevant

7756to the Utility's application at issue here, the record reflects that the

7768Respondents are correct in their conclusion that the uncontroverted evidence in

7779this case establishes that the Utility's existing water plant facility is not

7791located in a FEMA V-zone. This is acknowledged by the Hearing Officer in

7804Finding of Fact 20. In fact, the uncontroverted evidence shows that the

7816existing water plant structures are Located in a "A-17" zone, which is less

7829vulnerable to Gulf storm surge than a "V-zone". (Tr. Vol. II., 80; Utility Ex.

784421) I also agree with the Respondents' observation that the record evidence

7856would not seem to support a permissible inference that the location of the two

7870proposed wells would be in a FEMA V-Zone due to the potential of a storm surge

7886from the Gulf, since it is undisputed that the proposed well locations are

7899eastward of and farther away from the Gulf than the existing water plant.

7912(Utility Ex. 16)

7915In view of the above, I conclude that the location of the proposed new

7929wells by the Utility relative to a FEMA V-zone is not a factor within the

7944purview of the applicable permitting rules for location of public water wells

7956and that the location of the wells is not at issue in this case. I also

7972determine that there is no competent substantial evidence of record to support a

7985finding by the Hearing Officer that the location of the two proposed wells would

7999be in a FEMA V-zone, even if this FEMA criteria was applicable to the subject

8014permit proceeding.

8016Accordingly, Respondents' Exceptions II. and III. are granted. Exception

8025IV.

8026This exception of Respondents objects to the findings in the first sentence

8038of Finding of Fact 28 wherein the Hearing Officer asserts that:

8049The two deficiencies in Applicant's proof

8055relate solely to the susceptibility of the

8062proposed wells to a significant risk of damage

8070from flooding and other disasters and the

8077location of the proposed wells relative to

8084areas least subject to localized flooding.

8090The Respondents argue that these findings are improper due to:

8100(1) The delegation from the Department to the Water District of the

8112permitting of construction of public water wells.

8119(2) Lack of competent substantial evidence of risk of damage to the wells.

8132(3) Improper shifting of burden of proof.

8139The issue of delegation to the Water District of the duty and authority for

8153the permitting of construction of public water wells is disposed of in the

8166succeeding consolidated rulings on Respondents' exceptions V. through XII. I am

8177of the view that grounds (2) and (3) above are meritorious for the following

8191reasons.

8192The Hearing Officer's unchallenged findings establish that the Utility's

8201existing water plant on Don Pedro Island is well-constructed, exceeds minimum

8212construction and operating requirements, and has been operated since the 1980's

8223in "an exemplary fashion". (Findings of Fact 3, 21, 22, 24, and 25) The

8238Hearing Officer's findings also acknowledge that the reverse osmosis filtration

8248technology currently utilized at the water plant and proposed to be expanded in

8261capacity in this permit proceeding "is one of the most effective at eliminating

8274contaminants from drinking water." (Finding of Fact 22) The Hearing Officer

8285further finds that the subject Application "proposes no material changes to the

8297existing water storage tanks, distribution system, or the size or location of

8309the building that houses the existing and proposed water treatment equipment."

8320(Finding of Fact 5)

8324A review of the transcript of testimony reflects that the Utility presented

8336the testimony of Pedro Mora, the licensed professional engineer who prepared the

8348subject Application for the Utility. Mr. Mora testified that the Application

8359complied with the Department rules and standards for the issuance of the permit

8372to expand the treatment capacity of the existing water plant. (Tr. Vol. I, 89-

838690) Mr. Mora's testimony was corroborated by the expert testimony of two

8398Department permit review specialists who were involved in the review of the

8410Utility's Application. 5/ James Oni and Gary Maier both testified that, in

8422their opinion, the Utility's proposed project complied with all Department rules

8433and standards applicable to expansion of the drinking water system at the plant

8446on Don Pedro Island. (Tr. Vol. I, 137-138; 191-193)

8455Petitioners did not come forward with any expert witnesses at the DOAH

8467hearing to controvert the prior expert testimony presented in favor of the

8479Utility's permit request. 6/ Furthermore, the record reflects that Petitioners

8489failed to present any expert or lay testimony of prior contamination of the

8502water treated at the Utility's water plant due to flooding conditions since

8514commencement of operation in the 1980's. Thus, I conclude that the challenged

8526findings of the Hearing Officer in the first sentence of Finding Of Fact 28 are

8541based on an erroneous interpretation of the Department rules and are not based

8554on competent substantial evidence of record.

8560In view of the above and the conclusions in the following ruling,

8572Respondents' Exception IV. is granted

8577Exceptions V. through XII.

8581These exceptions of the Respondents take issue with various legal

8591conclusions and rule interpretations of the Hearing Officer in Conclusions of

8602Law 38, 39, 43, 44, 47, 48, 51, 55, 56, and 66. The Respondents also take

8618exception to the Hearing Officer's ultimate recommendation that the Department

8628enter a Final Order denying the Utility's application for expansion of the

8640capacity of its existing water treatment plant. The challenged legal

8650conclusions, rule interpretations, and recommendation of the Hearing Officer all

8660deal essentially with the same basic issue of the extent of the Department's

8673delegation to the Water District of responsibility for the permitting of public

8685water wells.

8687The Utility and the Department have consistently maintained the position

8697before the Hearing Officer and in these exceptions that the Department has

8709delegated to the Water District final authority and total responsibility to

8720issue permits for the location, construction, repair, and abandonment of public

8731water wells. It is undisputed that the Water District issued the two water well

8745permits to the Utility on February 8, 1995. Thus, these water well permits were

8759issued by the Water District prior to the commencement of this administrative

8771proceeding and even prior to the time that the Department issued its notice of

8785intent to issue the subject water treatment system expansion permit.

8795In the challenged Conclusions of Law identified above, the Hearing Officer

8806goes through a process of construing, in para materia, various rules of the

8819Department to support his interpretations and legal conclusions that the

8829Department has at least retained concurrent jurisdiction over the permitting of

8840public water wells. The Respondents contend in their exceptions that these rule

8852interpretations and resulting legal conclusions of the Hearing officer arc

8862erroneous and should be rejected. I concur with these exceptions of the

8874Respondents for the following reasons:

88791. The controlling provisions of Section 373.308, Florida Statutes, impose

8889a mandatory duty on the Department to delegate to the various water management

8902districts the authority to implement programs for the issuance of permits for

8914the location, construction, repair, and abandonment of water wells. Respondents

8924correctly observe in their exceptions that prior to the year 1983, the statutory

8937language in this delegation statute was permissive rather than mandatory. See

8948Section 373.308, Florida Statutes (1981). The 1983 statutory change inserting

8958the critical term "shall" for the prior permissive term "may" seems to evidence

8971the clear intent of the Legislature to ensure that the permitting of public

8984water wells would thereafter be handled on a regional basis by the five water

8998management districts. This statutory mandate to delegate the permitting of

9008public water wells to the water management districts was carried out by the

9021Department through the adoption of implementing agency rules. See, e.g., Rule

903262-555.510, Florida Administrative Code. 7/

90372. The Department's public water treatment specialists James Oni and Gary

9048Maier both testified at the DOAH formal hearing that the Department does not

9061currently have anything to do with the issuance of water well permits and that

9075such permits are issued by the water management districts. (Tr. Vol. 1, 140,

9088198-199; Vol. III, 93). Both Mr. Oni and Mr. Maier were accepted by the Hearing

9103Officer in this case as experts in applying Department rules to drinking water

9116treatment plants. (Tr. Vol. 1, 133-135, 191). A review of the record does not

9130indicate the presence of any other competent substantial evidence to the

9141contrary.

91423. The case law of Florida holds that great deference should be accorded

9155to administrative interpretations of statutes and rules that the agency is

9166required to enforce, and such administrative interpretations should not be

9176overturned unless clearly erroneous. See, e.g., Falk v. Beard, 614 So.2d 1086,

91881089 (Fla. 1993); Dept. of Env. Regulation v. Goldring, 477 So.2d 532, 534 (Fla.

92021985); Harloff v. City of Sarasota, 575 So.2d 1324, 1327 (Fla. 2d DCA 1991);

9216Reedy Creek Improvement Dist. v. Dept. of Env. Regulation, 486 So.2d 642, 648

9229(Fla. 1st DCA 1986). I conclude that this interpretations by Mr. Oni and Mr.

9243Maier of no current Department responsibility for the issuance of public water

9255well permits are not clearly erroneous. Rather, these interpretations appear to

9266be entirely consistent with the controlling provisions of Section 373.308,

9276Florida Statutes, and the Department's related rules dealing with delegation of

9287water well permitting to the water management districts.

92954. The only apparent source for the proposition that the Department has

9307retained concurrent jurisdiction with the water management district for

9316permitting public water wells is the Hearing Officer's personal interpretations

9326of the statutory and rule provisions quoted from his Recommended Order. 8/ At

9339the administrative review level the agency head is free to exercise his or her

9353judgment and reject erroneous conclusions of law or rule interpretations of a

9365hearing officer. See, e.g., Section 120.57(1)(b)10, Florida Statutes;

9373MacPherson v. School Board of Monroe County, 505 So.2d 682 (Fla. 3d DCA 1987);

9387Siess v. Dept. of Health and Rehabilitative Services, 468 So.2d 478 (Fla. 2d DCA

94011985); Alles v. Dept. of Professional Regulation, 423 So.2d 624 (Fla. 5th DCA

94141982). I conclude that these challenged rule interpretations and related

9424conclusions of law of the Hearing Officer are erroneous and must be rejected.

9437Based on the above, Respondents' Exceptions V., VI., VII., VIII., IX., X.,

9449XI., and XII. are granted.

9454Conclusion

9455I share the Hearing Officer's concern with the fact that the Petitioners

9467apparently did not receive actual notice of the Utility's pending water well

9479applications prior to the permits being issued by the Water District in February

9492of 1995. I would note that the record does not contain any testimony or other

9507evidence that any of the Petitioners in this case actually filed a written

9520request with the Water District to receive a copy of any pending applications

9533affecting Don Pedro Island as seemingly authorized by the Water District's

9544rules. See, Rule 40D-1.603(4), Florida Administrative Code. In any event, I am

9556not aware of any precedent for the Department having the legal authority to deny

9570a water treatment system modification permit to an applicant because a permit

9582challenger did not have actual knowledge of a related water well permit

9594application having been filed with a water management district prior to its

9606issuance of the permit. I am also not aware of any legal authority for the

9621Department to reverse or modify the actions of a water management district in

9634issuing water well permits eight months prior, particularly in a formal

9645administrative proceeding in which the water management district is not even a

9657party.

9658It is therefore ORDERED:

9662A. The findings in paragraph 20 of the Recommended Order are modified by

9675deleting therefrom the second sentence.

9680B. The findings in paragraph 23 of the Recommended Order are rejected in

9693their entirety.

9695C. The findings in paragraph 28 of the Recommended Order are modified by

9708deleting therefrom the first sentence.

9713D. Conclusions of Law 38, 39, and 43 of the Recommended Order are rejected

9727their its entirety.

9730E. Conclusion of Law 44 of the Recommended Order is modified by deleting

9743therefrom the last sentence.

9747F. Conclusion of Law 47 of the Recommended Order is modified by deleting

9760therefrom the first sentence.

9764G. Conclusions of Law 48, 51, 55, 56, and 65 of the Recommended Order are

9779rejected in their entirety.

9783H. Conclusion of Law 66 of the Recommended Order is modified by deleting

9796therefrom the first sentence.

9800I. The Recommendation of the Hearing Officer on pages 22-23 of the

9812Recommended Order is rejected in its entirety.

9819J. All of the Hearing Officer's remaining findings of fact and conclusions

9831of law not expressly modified or rejected in paragraphs A through I above are

9845adopted and incorporated herein by reference.

9851K. The Department's South District Office is directed to ISSUE to the

9863applicant Bocilla Utilities, Inc., permit number 5084079 for expansion of its

9874existing water treatment plant on Don Pedro Island, subject to the conditions

9886set forth in the Notice of Intent to Issue.

9895Any party to this Order has the right to seek judicial review of the Order

9910pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of

9923Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the

9935clerk of the Department in the Office of General Counsel, 3900 Commonwealth

9947Boulevard, Tallahassee, Florida 32399-3000; and by filing a copy of the Notice

9959of Appeal accompanied by the applicable filing fees with the appropriate

9970District Court of Appeal. The Notice of Appeal must be filed within 30 days

9984from the date this Order is filed with the clerk of the Department.

9997DONE AND ORDERED this 9th day of October, 1995, in Tallahassee, Florida.

10009STATE OF FLORIDA DEPARTMENT

10013OF ENVIRONMENTAL PROTECTION

10016_________________________________

10017VIRGINIA B. WETHERELL

10020Secretary

10021Marjory Stoneman Douglas Building

100253900 Commonwealth Boulevard

10028Tallahassee, Florida 32399-3000

10031FILING AND ACKNOWLEDGMENT

10034FILED, ON THIS DATE PURSUANT TO S. 120.52

10042FLORIDA STATUES WITH THE DESIGNATED

10047DEPARTMENT CLERK, RECEIPT OF WHICH

10052IS HEREBY ACKNOWLEDGED.

10055_______________________________

10056B. Reader. 10/09/95

10059DEPUTY CLERK DATE

10062ENDNOTES

100631/ The term "Department" in this Final Order will include the former Department

10076of Environmental Regulation, a predecessor agency of the present Department of

10087Environmental Protection.

100892/ The Utility and the Department will sometimes be referred to collectively as

10102the "Respondents".

101053/ The Utility initially proposed locating the plant on the mainland and

10117conveying water through submerged pipes to Don Pedro Island. This proposal was

10129approved by the Army Corps of Engineers and the former Department of

10141Environmental Regulation, but the Trustees of the Internal Improvement Trust

10151Fund denied the Utility's request for an easement across sovereign submerged

10162lands. After failing to obtain a sovereign submerged land easement, the Utility

10174obtained permits to build a reverse-osmosis (RO) water plant at its present

10186location on the barrier island. Included among the permits was a permit from

10199the Department of Natural Resources dated September 11, 1985, allowing the

10210Utility to construct the water treatment plant and two underground concrete

10221water storage tanks up to 100 feet seaward of the coastal construction control

10234line.

102354/ A "FEMA V-zone" is a term whose source is derived from the provisions of the

10251National Flood Insurance Program. In 44 CFR 59.1, a "FEMA V-zone" is indirectly

10264defined as a coastal "area of specific flood hazard extending from offshore to

10277the inland limit of a primary frontal dune along an open coast and any other

10292area subject to high velocity wave action from storms or seismic sources."

103045/ James Oni is a licensed professional engineer in this state who holds the

10318title of Professional Engineer II with the Department. (Tr. Vol. 1. 132) Mr.

10331Oni's supervisor Gary Maier is also a Florida licensed professional engineer who

10343holds the title of Professional Engineer III with the Department. (Tr. Vol. 1,

10356190). Both Mr. Oni and Mr. Maier were accepted by the Hearing Officer as

10370experts in the operation of drinking water treatment plants and in applying

10382Department rules relating to drinking water treatment plants. (Tr. Vol. 1, 133-

10394135, 191)

103966/ In the landmark case of Florida Dept. of Transportation v. J.W.C. Co., Inc.,

10410396 So.2d 778 (Fla. 1st DCA 1981), the court wrote a seminal opinion dealing

10424with the respective evidentiary burdens of the permit applicant and permit

10435challenger in a formal administrative hearing. The court concluded that once

10446the permit applicant has presented its evidence and has made a preliminary

10458showing of "reasonable assurances" that applicable Department standards will not

10468be violated, then the burden shifts to the permit challenger to go forward with

10482evidence to prove that the applicant is not entitled to the permit. Id. 789.

10496The court also observed that the permit challenger must present "contrary

10507evidence of equivalent quality" to that presented by the permit applicant. Id.

10519789. It is evident that the Petitioners in this case failed to go forward with

10534the presentation of controverting evidence of equivalent quality to that

10544presented by the Respondents' experts in favor of the permit.

105547/ The Department retained jurisdiction to establish minimum standards for the

10565location, construction, repair, and abandonment of water wells throughout the

10575state as authorized by Section 373.308(4), Florida Statutes. These Department

10585minimum standards for water wells are currently set forth in Chapters 62-524,

1059762-531, 62-532 and 62-555, F.A.C. The Water District has expressly incorporated

10608these Department minimum water well standards into its own rules. See Rule 40D-

106213.037(1), F.A.C.

106238/ The Hearing Officer suggests in Conclusion of Law 65 that the location of

10637the two proposed water wells is at issue in this case because they are part of

10653the "plant site" as referred to in Department Rule 62-555.310, F.A.C. This

10665conclusion of the Hearing Officer is not compelling. The Hearing Officer's

10676unchallenged Finding of Fact 17 establishes that the proposed locations of the

10688two wells would be 200 and 450 feet respectively from the water treatment tanks.

10702The remoteness of the proposed water wells from the existing water plant

10714structure does not seem to support the Hearing Officer's conclusion. Also, the

10726viability of this conclusion is further undermined by the fact the Department

10738standards for location of the "plant site" and for location of public drinking

10751water wells are set forth in two separate rules. See, Rule 62-555.310 and 62-

1076555-312, F.A.C.

10767CERTIFICATE OF SERVICE

10770I HEREBY CERTIFY that a copy of the foregoing Final Order has been sent by

10785U.S. Mail to:

10788Robert Starr

10790Post Office Box 5337

10794Grove City, Florida 34224

10798Betty Brenneman

10800Post Office Box 67

10804Placida, Florida 33946

10807M. Christopher Bruant

10810OERTEL HOFFMAN

10812Post Office Box 6507

10816Tallahassee, Florida 32314-6507

10819and by hand delivery to:

10824Thomas I. Mayton, Jr.

10828Assistant General Counsel

10831Department of Environmental Protection

108353900 Commonwealth Blvd., M.S. 35

10840Tallahassee, Florida 32399-3000

10843Ann Cole, Clerk

10846and

10847Robert E. Meale, Hearing Officer

10852DIVISION OF ADMINISTRATIVE HEARINGS

10856The DeSoto Building

108591230 Apalachee Parkway

10862Tallahassee, Florida 32300-1550

10865Jim Duff

10867Post Office Box 41

10871Placida, Florida 33946

10874this 10th day of October, 1995.

10880STATE OF FLORIDA DEPARTMENT

10884OF ENVIRONMENTAL PROTECTION

10887________________________________

10888J. TERRELL WILLIAMS

10891Assistant General Counsel

108943900 Commonwealth Blvd., MS 35

10899Tallahassee, Florida 32399-3000

10902Telephone: 904/488-9314

Select the PDF icon to view the document.
PDF
Date
Proceedings
Date: 01/17/1996
Proceedings: AGENCY APPEAL, ONCE THE RETENTION SCHEDULE OF -KEEP ONE YEAR AFTER CLOSURE- IS MET, CASE FILE IS RETURNED TO AGENCY GENERAL COUNSEL. -ac
Date: 11/09/1995
Proceedings: Final Order filed.
Date: 11/08/1995
Proceedings: AGENCY APPEAL, ONCE THE RETENTION SCHEDULE OF -KEEP ONE YEAR AFTER CLOSURE- IS MET, CASE FILE IS RETURNED TO AGENCY GENERAL COUNSEL. -ac
Date: 10/10/1995
Proceedings: Final Order filed.
PDF:
Date: 10/09/1995
Proceedings: Agency Final Order
PDF:
Date: 08/25/1995
Proceedings: Recommended Order
PDF:
Date: 08/25/1995
Proceedings: Recommended Order sent out. CASE CLOSED. Hearing held 07/31/95 & 08/01/95.
Date: 08/18/1995
Proceedings: Bocilla Utilities` Notice of Filing Bocilla Utilities` First Set of Interrogatories to Petitioners; Respondent Bocilla Utilities, Inc.`s First Set of Interrogatories to Petitioner Robert Starr filed.
Date: 08/18/1995
Proceedings: Joint Proposed Recommended Order of Respondents Bocilla Utilitites, Inc., and Department of Environmental Protection filed.
Date: 08/10/1995
Proceedings: Letter to hearing officer from Robert Starr & Betty Brenneman Re: Response to Motion by Respondent for attorney fees and costs filed.
Date: 08/08/1995
Proceedings: Transcript of Proceedings ; Notice of Filing Volume II of the Original Transcript of Final Hearing filed.
Date: 08/07/1995
Proceedings: Transcript of Proceedings Volume I and Volume III ; Notice of Filing Original Transcript of Final Hearing; Letter to M. Christopher Bryant from Maryanne Wagner Re: Transcripts filed.
Date: 07/31/1995
Proceedings: Petitioners Robert Starr-Betty Brenneman-Jim Duff Motion In Limine; Respondent Bocilla Utilities Response to Petitioners Request for Admissions; Supplemental Petitioners Notice of Witness Expected to Give Testimony; Bocilla Utilities Motion
Date: 07/31/1995
Proceedings: CASE STATUS: Hearing Held.
Date: 07/28/1995
Proceedings: Bocilla Utilities Motion for Attorney`s Fees and Costs filed.
Date: 07/26/1995
Proceedings: (Petitioners`) Notice of Filing Answers to Request for Admissions; Respondent Bocilla Utilities Response to Petitioners` Request for Admissions; Petitioners` Notice of Witness Expected to Give Testimony filed.
Date: 07/26/1995
Proceedings: (M. Christopher Bryant) Bocilla Utilities Motion in Limine filed.
Date: 07/21/1995
Proceedings: (Petitioners) (2) Notice of Filing Answers to Interrogatories; Petitioners` First Set of Interrogatories to Respondent Bocilla Utilities, Inc.; Petitioners` First Set of Interrogatories to Respondent State of Florida Department of Environmental Protection
Date: 07/17/1995
Proceedings: Respondent Bocilla Utilities Response to Petitioners` Request for Admissions filed.
Date: 07/12/1995
Proceedings: Bocilla Utilities` Notice of Service of Answers to Petitioners` First Set of Interrogatories filed.
Date: 07/10/1995
Proceedings: DEP`s Notice of Service of Answers to Interrogatories filed.
Date: 06/30/1995
Proceedings: (Respondent) Notice of Filing Answers to Interrogatories filed.
Date: 06/19/1995
Proceedings: (Michele d`Amour) Petition for Withdrawal from Administrative Procedure, DOAH Case No. 95-1577 and DEP/OGC Case No. 95-665 filed.
Date: 06/19/1995
Proceedings: Petitioner's Request for Admission from Respondent Bocilla Utilities Inc.; Notice of Service of Request for Admissions; Petition by Richardand Jane Bossey for Withdrawal from the Petition for Administrative Proceeding; Letter to M r and Mrs. Richard Bosse
Date: 06/14/1995
Proceedings: Order Granting Motion sent out.
Date: 06/12/1995
Proceedings: (Joint) (2) Notice of Service of Interrogatories; Petitioners` First Set of Interrogatories to Respondent State of Florida Department of Environmental Protection; Petitioners` First Set of Interrogatories to Respondent Bocilla utilities, Inc. filed.
Date: 06/01/1995
Proceedings: Respondent Bocilla Utilities, Inc.`s Motion to Dismiss and to Strike Petitioners` More Definite Statement filed.
Date: 05/30/1995
Proceedings: Petitioner`s Response to Request for More Definite Statement filed.
Date: 05/17/1995
Proceedings: (Respondent) Notice of Service of Interrogatories filed.
Date: 05/10/1995
Proceedings: Order on Motions to Dismiss and Strike sent out. (ruling on motions)
Date: 05/09/1995
Proceedings: Notice of Hearing sent out. (hearing set for 7/31/95; 12:00 noon; Port Charlotte)
Date: 04/21/1995
Proceedings: Department of Environmental Protection`s Supplemental Response to Initial Order filed.
Date: 04/18/1995
Proceedings: Petitioners` Opposition to Respondent Bocilla Utilities, Inc.,s Motion to Dismiss and Motion to Strike Petition for Administrative Proceedings filed.
Date: 04/12/1995
Proceedings: Department of Environmental Protection`s Response to Initial Order filed.
Date: 04/07/1995
Proceedings: Bocillia Utilities, Inc.`s, Request for Oral Argument on its Motion to Dismiss and Strike Petition for Formal Administrative Proceedings; Bocillia Utilities, Inc.`s, Motion to Dismiss and Motion to Strike Petition for Administrative Proceedings filed.
Date: 04/04/1995
Proceedings: (Respondent) Notice of Appearance as Counsel filed.
Date: 04/04/1995
Proceedings: (DEP) Intent to Use; Notice of Intent to Issue Permit filed.
Date: 04/04/1995
Proceedings: Initial Order issued.
Date: 03/31/1995
Proceedings: Request for Assignment of Hearing Officer and Notice of Preservation of Record; Petition for Administrative Proceeding; Requirements For Service Connection filed.

Case Information

Judge:
ROBERT E. MEALE
Date Filed:
03/31/1995
Date Assignment:
04/04/1995
Last Docket Entry:
01/17/1996
Location:
Port Charlotte, Florida
District:
Middle
Agency:
ADOPTED IN PART OR MODIFIED
 

Related DOAH Cases(s) (2):

Related Florida Statute(s) (6):

Related Florida Rule(s) (8):