01-003535 Cynthia Valencic vs. Department Of Environmental Protection And Sarasota County Status: Closed Recommended Order on Monday, April 19, 2004.

Summary: Operational concerns of a Class V injection well should not be considered in an application for a contruction permit. These concerns are addressed in the application for operating permits. Permit is approved.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CYNTHIA VALENCIC, )

)

Petitioner, )

)

vs. ) Case No. 01 - 3535

)

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION and SARASOTA )

COUNTY, )

)

Respondents. )

______________________________)

RECOMMENDED ORDER

Pursuant to notic e, this matter was heard before the

Division of Administrative Hearings by its assigned

Administrative Law Judge, Donald R. Alexander, on August 20,

21, 22, and 27, 2002, in Sarasota, Florida.

APPEARANCES

For Petitioner: Jeanne Marie Zokovitch Paben, E squire

Scott A. Randolph, Esquire

David A. Ludder, Esquire

Legal Environmental Assistance

Foundation, Inc.

1114 Thomasville Road, Suite E

Tallahassee, Florida 32303 - 6290

For Respondent: Craig D. Varn, Esquire 1

(Agency) Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

For Respondent: Rory C. Ryan, Esquire

(County) Roger W. Sims, Esquire

Holland & Knight LLP

200 South Orange Avenue, Suite 2600

Orlando, Florida 32801 - 3461

For Respondent: Gary K. Oldehoff, Esquire

(County) Office of the County Attorney

1660 Ringling Boulevard, Second Floor

Sarasota, Florida 34236 - 6870

STATEMENT OF THE ISSUE

The issue is whether Sarasota County's application for a

permit authorizing the construction of a Class V, Group 3

aquifer storage and recovery well system at the Central County

Water Reclamation Facility in Sarasota, Florida, should be

approve d.

PRELIMINARY STATEMENT

This matter began on July 19, 2001, when Respondent,

Department of Environmental Protection (Department), published

its Notice of Intent (Notice) to issue two underground

injection control permits to Respondent, Sarasota County

(Co unty), authorizing the construction of aquifer storage and

recovery well systems in Sarasota and Venice, Florida,

respectively. Petitions challenging the two permits were then

filed by the City of Venice, a municipality in the County, and

Petitioner, Cynt hia Valencic (Valencic), a resident of

Tallahassee, Florida, whose verified Petition was filed under

Sections 120.569, 120.57(1), and 403.412(5), Florida Statutes

(2001). 2 Both matters were referred to the Division of

Administrative Hearings on Septembe r 6, 2001, with a request

that an Administrative Law Judge be assigned to conduct a

hearing. The challenges to the Venice permit were given Case

Nos. 01 - 3515 and 01 - 3534, while the challenges to the Sarasota

permit were given Case Nos. 01 - 3516 and 01 - 3535 . All cases

were later consolidated by Order dated September 24, 2001. In

the same Order, and at the request of the parties, the final

hearing was not scheduled until the week beginning February 4,

2002, pending efforts by the parties to reach a settleme nt.

On December 5, 2001, the County withdrew its application

for a permit in Venice, Florida. Both Petitioners then filed

a Notice of Partial Voluntary Dismissal and Request for

Permission to File Revised Petitions and to Reschedule First

Day of Hearing . By Order dated December 24, 2001, the

undersigned granted the parties leave to file amended

petitions, closed the files in Case Nos. 01 - 3515 and 01 - 3534,

and rescheduled the final hearing to begin on February 5,

2002, instead of February 4, 2002. Amend ed Petitions were

filed by the two challengers on January 11, 2002.

Thereafter, Ms. Valencic's unopposed Motion for

Continuance of Hearing Date was granted, and the final hearing

was rescheduled to April 15 - 19, 2002, in Sarasota, Florida. A

second unoppos ed request for a continuance filed by the City

of Venice was granted, and the final hearing was continued to

August 20 - 22 and 27 - 29, 2002, at the same location.

On August 12, 2002, the City of Venice and the County

entered into a Settlement Agreement (Ag reement), which

resolved their dispute. After the Agreement was executed by

those parties, a Notice of Voluntary Dismissal was filed by

the City of Venice on August 15, 2002, and Case No. 01 - 3516

was closed on August 19, 2002. Accordingly, only the

chall enge in Case No. 01 - 3535 to the issuance of the Sarasota

permit remains at issue.

At the final hearing, Petitioner testified on her own

behalf and offered Petitioner's Exhibits 1 - 3, 5 - 11, and 18 - 22.

All were received except Exhibits 10, a portion of 11, and 22.

In addition, a ruling was reserved as to Exhibits 19 - 21, which

are the depositions of John Vecchioli, Charles Drake, and

James Christopher, witnesses previously retained by the City

of Venice, no longer a party in this proceeding. The County's

a nd Department's objections to the admission of these exhibits

is hereby sustained. The Department presented the testimony

of Judith A. Richtar, Program Manager for the Tampa District

Office's Underground Injection Control Program and accepted as

an expert . The County presented the testimony of R. David G.

Pyne, a professional engineer and accepted as an expert;

Thomas A. Farkas, a hydrogeologist and accepted as an expert;

Michael D. Micheau, a hydrogeologist and accepted as an

expert; and James L. Ley, Co unty Administrator. Also, it

offered County Exhibits 1 - 30, which were received in evidence.

The Transcript of the hearing (four volumes) was filed on

September 6, 2002.

On August 22, 2002, or before the final hearing was

concluded, Petitioner filed a Pe tition for Review of Non - Final

Agency Action Under Administrative Procedure Act with the

First District Court of Appeal challenging a preliminary Order

dated August 19, 2002, which, among other things, quashed

subpoenas issued by Petitioner to three expert s previously

retained by the City of Venice. That appeal was eventually

dismissed by the Court on January 5, 2004, on the ground that

Petitioner lacked standing to file her appeal. Cynthia

Valencic v. Dep't of Envir. Prot. and Sarasota County

Utilities , 865 So. 2d 584 (Fla. 1st DCA 2004). Petitioner's

Motion for Rehearing, Clarification and Written Opinion and

Motion for Rehearing En Banc were denied on February 12, 2004,

and the Court's Mandate was issued on March 1, 2004. Also, on

September 4, 2002, o r just after the hearing was concluded,

Petitioner filed a second Petition for Review of Non - Final

Agency Action Under Administrative Procedure Act with the

First District Court of Appeal challenging an evidentiary

ruling made during the final hearing. Th at appeal was

dismissed by an unpublished Order dated September 19, 2002, on

the ground "that no written order has been rendered by the

lower tribunal." Cynthia Valencic v. Dep't of Envir. Prot.

and Sarasota County Utilities , 1st Dist. Ct. App., Case No.

1D02 - 3564.

By agreement of the parties, the time for filing proposed

findings of fact and conclusions of law was abated until after

the interlocutory appeals were concluded. Thereafter, the

parties were given until March 31, 2004, in which to do so.

Ti mely filings were made by the parties, and they have been

considered by the undersigned in the preparation of this

Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of

fact are determined:

A. Background

1. On September 14, 1999, the County, through its

Utilities Department, filed with the Department an application

for a permit to construct a Class V, Group 3 aquifer storage

and recovery (ASR) test well and monitor well system at its

Central County Water Reclama tion Facility, 79005 South

McIntosh Road, Sarasota, Florida. The Department is charged

with the responsibility of issuing such permits.

2. On July 19, 2001, the Department issued its Notice of

Intent to issue Permit No. 160882 - 001 - UC. The permit

autho rizes the County to construct one test well to determine

the feasibility for the storage and recovery of reclaimed

water from the Suwannee Limestone of the Upper Floridan

aquifer system at a depth of between 500 and 700 feet below

land surface. Also, the County is authorized to construct

three monitor wells, one into the target storage zone, the

second into the first overlying transmissive unit, and the

last into the overlying Arcadia Formation. The storage

capacity of the test well is projected to be bet ween one and

two million gallons per day.

3. On August 10, 2001, Petitioner, who is a citizen of

the State of Florida, resides in Tallahassee, and is a long -

time employee of Legal Environmental Assistance Foundation,

Inc., filed her verified Petition for Formal Administrative

Hearing (Petition) under Sections 120.569, 120.57(1), and

403.412(5), Florida Statutes. In her Petition, she generally

contended that the permitting would have the effect of

impairing, polluting, or otherwise injuring the water of th e

State because the proposed injectate (being placed in the

well) will not meet primary and secondary drinking water

standards, may be harmful to human health, and will violate

the minimum criteria for groundwater. She also contends that

the permit applic ation was not signed by the proper signatory

and that the Department failed to require the County to first

drill an exploratory well (as opposed to a test well). While

these allegations were not sufficient to demonstrate that

Petitioner's substantial inte rests were affected by the

proposed permitting, they were deemed sufficient (subject to

proof at final hearing) to satisfy the pleading requirements

of Section 403.412(5), Florida Statutes.

B. Water Reuse Generally

4. Water reuse is the use of reclaimed water for a

beneficial purpose. Because of Florida's continuing

population growth and occasional water shortage, the use of

reclaimed water is an important conservation tool. Indeed, in

2002 the Legislature showed strong support for water

conservation an d reuse by amending Section 403.064(1), Florida

Statutes, and adding language which states that "the reuse of

reclaimed water is a critical component of meeting the state's

existing and future water supply needs while sustaining

natural systems." To this end, the County has filed its

application for the purpose of using reclaimed water for such

lesser uses as irrigation so that the existing high quality

fresh groundwater can be used for higher and better purposes

such as drinking water for the general publ ic.

5. The Southwest Florida Water Management District

(District) has also encouraged the use of reclaimed water by

providing funding for this type of program to induce utilities

to move forward with reuse programs. In addition, the

Department has been proactive in promoting the reuse of water

throughout the State in order to conserve water resources.

C. Aquifer Storage and Recovery

6. Aquifer storage and recovery (ASR) is a reuse program

encouraged by the Legislature, Department, and District. It

in volves the storage of water underground in a suitable

formation, through a well, during times when water is

available to put into the well, and then recovery of that

stored water from the well during times when it is needed for

some beneficial purpose. Pu t another way, an ASR operates

like an underground storage tank.

7. Water is placed into the ASR wells (by means of

pumping) during recharge periods when it is raining and there

is no demand for reclaimed water. When the water is pumped

into the well, a stored water bubble is created by using

buffer zones made of water with more salinity than the stored

water. These buffer zones are designed so that there can be

full recovery of the stored water. The recovery rate is

generally around 100 percent.

8. There are three ways to store reclaimed water:

surface ponds, storage tanks, and ASR. The ASR storage method

is the most efficient method of storing reclaimed water, and

it has significant environmental, utility, and economic

benefits. The ASR method ha s no impact on wetlands and

ecosystems, and unlike pond storage (and to a lesser degree

storage tanks), it does not require the use of large surface

areas and is not affected by evapotranspiration and seepage.

(There is typically a 60 percent loss of wate r due to

evaporation in surface storage areas.) It also results in

cost savings (up to a 50 percent reduction in capital costs)

and avoidance of wetlands impacts.

9. One of the goals of the County's Comprehensive Plan

is to maximize the use of reclaime d water for irrigation

purposes. Because other storage methods have proved to be

inefficient, ASR is the County's preferred storage method to

meet this goal.

10. At the time of the final hearing (August 2002),

there were at least fifty - six ASR systems op erating outside

the State of Florida (and around one hundred more in various

stages of development) and eleven ASR systems successfully

operating in the State, the first one having been established

in 1983. At that time, there were also two ASR test progr ams

underway in the area, including one in the Englewood Water

District, a few miles to the south of the proposed project,

and the Northwest Hillsborough ASR program, which is located

just north of the County. Also, ASR systems are located in

Manatee Coun ty and near the Peace River, which is in the same

storage area being proposed here. Therefore, the County has

the benefit of drawing upon twenty years of experience with

this type of system.

D. The Permit

11. The County began an informal water reuse pr ogram in

1988, when it first used effluent disposal for irrigation

purposes at a local golf course. A formal program (the Reuse

Master Plan) was commenced in 1994; however, the County still

lacks the storage capacity to meet the seasonal demands of its

re use customers. 3 Without storage, any excess water must be

discharged and lost. In order to meet the County's goal of

maximizing reclaimed water use, it must be able to adequately

store reclaimed water.

12. Due to projected population growth and issues

concerning management of limited resources, in 1997 the County

began considering the use of ASR as a means to better manage

its reclaimed water supply and demand for those facilities

which serve the North County Reuse System.

13. If all necessary permi ts are obtained, the County

intends to use reclaimed water from its Central County

wastewater facility. Currently, that effluent receives

advanced tertiary treatment with deep bed filtration and high

level disinfection.

14. The proposed test well will be approximately 700

feet deep; at that depth, the injection (or storage) zone will

consist of the Suwannee Limestone formation of the Upper

Floridan aquifer system. The storage zone is brackish, with

the water quality or salinity having about six times t he

acceptable degree of salinity for a drinking water source.

15. It is anticipated that the total dissolved solids

(TDS) concentration in the injection zone will be greater than

3,000 TDS. If water quality at the proposed injection zone is

greater tha n 3,000 TDS, this fact will be revealed during the

construction of the test injection well and during the various

tests to be conducted during construction. (Assuming this

level of TDS is found, then at that point the County would

have to provide reasonab le assurance that the water

reclamation facility is providing full or principal treatment

to the domestic waste.)

16. The evidence establishes that there is some level of

transmissivity in the confining layer overlying the proposed

injection zone. That is to say, there is some small degree of

connectivity between the proposed injection zone and the

aquifer above it. The actual level of transmissivity will be

determined based upon tests run during the construction of the

first monitor well.

17. The e ffluent produced from the County's water

reclamation facility meets drinking water standards. If the

plant is unable to produce effluent that meets or exceeds the

applicable water quality standards, this issue is an

operational concern which can be addres sed in a permit

modification authorizing operational testing.

18. Under the Department's permit process, if the

construction permit is approved, the County will construct a

monitor well to obtain more site - specific information

concerning such things as the geology, hydrology, and water

quality at the site. (At this point, while the County has

published literature sources and regional geologic information

from two nearby ASR systems using the same storage area to

rely upon, it has no specific data for th e very small parcel

where the well will be constructed.)

19. Once the information is obtained, an engineering

report is prepared and submitted to the Department. That

report contains a wide array of technical data, including

construction data, hydroge ologic data, formation samples,

water quality samples, hydraulic data, core data, Packer data,

and geophysical data. This information is then used by the

Department (and a special advisory committee called the

Technical Advisory Committee) to evaluate whe ther the site can

be authorized for cycle testing and later for operational

purposes. If cycle testing is appropriate, the County must

then request a modification to its construction permit to

authorize cycle testing of its ASR well. That modification,

a nd any others that may be warranted by the new information,

are "final agency action subject to the procedural safeguards

contained in Chapter 120, F.S." Fla. Admin. Code R. 62 -

528.100(2).

20. When the test injection well is constructed and

eventually placed into operation, monitor wells will be used

to monitor background water in both the injection zone and in

the two aquifers overlying the proposed injection zone.

However, until further Department approval is obtained, no

injection of reclaimed water is authorized; the permit being

sought here authorizes only the construction of the well

itself. Finally, Florida Administrative Code Rule 62 -

528.640(1)(a) requires that the County obtain a separate

operation permit after the construction permit has been issued

and testing completed.

E. Criteria and Standards for a Class V Well

21. Florida Administrative Code Chapter 62 - 528 governs

all injection wells defined as Class I, III, IV, or V wells.

(In Class II wells, the injected fluids are used in connectio n

with oil and natural gas production and are regulated by the

Florida Geological Survey under Chapter 377, Florida

Statutes.) The category of wells in which the County seeks a

permit is a Class V, Group 3 permit, which includes all

domestic wastewater we lls. See Fla. Admin. Code R. 62 -

528.300(1)(e)3. A Group 3 well involves the injection of

fluids that have been processed through a permitted domestic

wastewater treatment plant.

22. Even though the County is requesting a permit for a

Class V well, at th e request of the Department, it submitted a

different (and more stringent) type of application (a "900"

application) since the Department has the authority to apply

"any of the criteria for Class I wells" if it believes that

the well may cause or allow flu ids to migrate into an

underground source of drinking water which may cause a

violation of primary or secondary drinking water standards.

See Fla. Admin. Code R. 62 - 528.605(2). (A Class I well is a

well used to inject hazardous waste below the lowermost

formation containing an underground source of drinking water.)

In this case, the Department opted to apply certain Class I

construction standards for the well, in addition to the normal

standards for Class V wells. Those standards are found in

Florida Ad ministrative Code Rule 62 - 528.400. This means that

the County will be held to a higher standard than a general

underground injection control permit.

23. Florida Administrative Code Rule 62 - 528.605 contains

the Class V well construction standards. For the following

reasons, the County has given reasonable assurance that all

criteria will be met.

24. Subsection (1) of the rule requires that "a well

shall be designed and constructed for its intended use, in

accordance with good engineering practices, and the design and

construction shall be approved by the Department with a

permit." The evidence clearly establishes that good

engineering practices have been followed by the County for the

design and construction of the well.

25. Subsection (2) requires th at an applicant design and

construct the well so that it will not "cause or allow fluids

to migrate into an underground source of drinking water which

may cause a violation of a primary or secondary drinking water

standard . . . or may cause fluids of sign ificantly differing

water quality to migrate between underground sources of

drinking water." Subsection (3) is also directed at the

migration of fluids. The evidence shows that the migration of

fluids between aquifers will be prevented as a part of the

d esign and construction of the ASR well program. The design

chosen by the County has been proven to prevent migration of

fluids between aquifers, and it will preserve the integrity of

the confining beds. The combination of steel casing and

cementing preve nts the migration of fluids along the borehole.

26. The well will be constructed by a Florida licensed

contractor, as required by Subsection (4). The remaining

criteria in the rule will be satisfied during the construction

process.

27. Florida Adminis trative Code Rule 62 - 528.620 contains

reporting requirements for Class V wells. All of these

requirements are included in the draft permit and will be met

by the County.

28. The Department has also included Special Condition

1(h) in the draft permit, w hich provides that nothing will be

injected into the well that does not meet the Federal Primary

Drinking Water Standard. This condition is drawn from Florida

Administrative Code Rule 62 - 528.307, which specifies general

conditions to be included in underg round injection control

permits. In accordance with this condition, the County will

monitor the movement of fluid to ensure that there are no

violations.

29. The County has also demonstrated that there will be

no hazardous waste injection, as prohibited by Florida

Administrative Code Rule 62 - 528.600(1)(a).

30. Finally, the requirements of Florida Administrative

Code Rule 62 - 528.630(3) do not apply at this time since the

proposed permit is only for construction of a well, and not

the injection of water.

F. Class I Well Construction Standards

31. Because the Department has imposed more stringent

construction standards on the County, the Class I well

construction standards found in Florida Administrative Code

Rule 62 - 528.410(1) come into play.

32. The County has demonstrated that it has complied

with the requirement that the well be cemented and cased. In

addition, the County has considered corrosion protection in

the cementing and casing of the proposed well. Because the

casing will be cemented, coa ting is not required. Finally,

there will be no open annulus (spacing between the casings and

the bore hole) in the ASR test well.

G. Other Requirements

a. Drilling

33. Geophysical surveys will be conducted during the

pilot hole drilling stages to c ollect hydrogeologic

information. Further, drill stem tests will be conducted

throughout the drilling, and a driller's log will be

maintained. See Fla. Admin. Code R. 62 - 528.410(3).

b. Casing

34. Steel casing will be used, taking into consideration

the possible corrosion of steel. The life expectancy of the

well was considered, as required by Florida Administrative

Code Rule 62 - 528.410(4)(a), and was determined to be unknown.

c. Cement

35. Type 2 cement will be used, which is sulfate

resistant and is specifically designed for use in regions such

as Florida.

d. Testing

36. Geophysical logs will be used during the

construction and testing of the well to verify the physical

conditions of the well and confirm that construction is

proceeding according to the plan. Also, geophysical surveys

will be conducted during pilot hole drilling stages to collect

subsurface hydrogeologic information.

e. Environmental concerns

37. Once a drilling contractor is selected, the location

for the disposal of drilling fluids will be submitted for

Department approval in accordance with Special Condition 1(b)

in the draft permit.

f. Monitor well construction standards

38. The monitor well will meet all construction

requirements under Florida Administrative Code Rule 62 -

528.420. (The same standards that are applied to Class V

wells are also applied to monitor wells.)

g. General design considerations

39. Exploratory pilot hole drilling stages will be

conducted to collect hydrogeologic information, and complete

sets o f geophysical surveys will be performed.

40. Because cement generates heat, temperature surveys

will be run as a part of the construction sequence to verify

coverage of the cement. This means that tools will be lowered

into the hole after each cementing stage to verify coverage.

h. Monitoring requirements

41. Florida Administrative Code Rule 62 - 528.425(1)(d)

requires that an applicant perform "a demonstration of

mechanical integrity . . . at least once every five years

during the life of the well." Details to accomplish this are

found in both the application and the draft permit.

42. Florida Administrative Code Rule 62 - 528.425(1)(f)

requires that the background water quality of the injection

zone and monitoring zone be determined prior to injection.

The County will perform this task before injection occurs.

43. Florida Administrative Code Rule 62 - 528.425(1)(g)

requires that monitor wells be installed above the injection

zone near the project. The County will construct three wells,

as required by t he rule. They will also be placed at a

sufficient distance from the project, as required by Florida

Administrative Code Rule 62 - 528.425(1)(h), and the specific

monitoring intervals are detailed in the draft permit.

i. Reporting requirements

44. The Depa rtment requires periodic data reports and

progress reports regarding eight separate types of

information. See Fla. Admin. Code R. 62 - 528.430(1)(a). These

reporting requirements will be performed and followed.

45. Because a Class V well may be required t o be plugged

and abandoned, the Department requires a plugging and

abandonment report. See Fla. Admin. Code R. 62 - 528.625. All

requirements under this rule have been met, and the County has

the financial resources to accomplish this task, when

required.

j. General Class I permitting requirements

46. Florida Administrative Code Rule 62 - 528.440 sets

forth general permitting requirements for Class I and III

wells. Because the Department has opted to impose certain

Class I criteria on the County's applicat ion, some of the

criteria in this rule apply. They include special conditions

1(a), (c), and (e) in the permit for well construction, system

modification, and

fluid injection, all of which have been, or will be, met by

the County.

47. In addition, the duration for the operation permit

cannot exceed five years, and the County was required to

submit an application for a permit which conformed with the

requirements of the rule.

48. As a part of its application, the County established

an area of review fo r the construction permit, taking into

account the zone of endangering influence. See Fla. Admin.

Code R. 62 - 528.300(4). (An area of review is the area

surrounding an injection well, including the area of possible

endangering influence.) This requiremen t was met because the

established area of review is one mile even though the

predicted area of influence is expected to be no more than 400

feet.

49. As a part of the preceding analysis, the County also

conducted an area of review study, as required by Florida

Administrative Code Rule 62 - 528.440(6)(a). In doing so, the

County evaluated the impact on the ASR well, and the impact

the ASR well would have on the surrounding area. That

evaluation determined that there are no water supply wells

within the ar ea of review.

50. Because the construction permit only has a duration

of five years, and given the County's supporting information

submitted with the area of influence study, the Department has

not required that the County provide a corrective action pla n.

See Fla. Admin. Code R. 62 - 528.300(5)(a).

k. Class I well construction permit criteria

51. All guidelines for constructing the well have been

followed, and the construction of the well will not be a

source of pollution. The County has provided rea sonable

assurance that the project will function in accordance with

the requirements of Florida Administrative Code Chapter 62 -

528.

l. Hydrological modeling

52. Finally, Florida Administrative Code Rule 62 - 528.405

specifies criteria for evaluating the geologic and hydrologic

environment of Class I wells. The County has satisfied all

criteria in the rule.

H. Other Issues

a. Exploratory well

53. Petitioner contends that the Department should

require the County to construct an exploratory well, as

de fined in Florida Administrative Code Rule 62 - 528.603(1),

rather than a test well. That rule defines an exploratory

well as one being "drilled for the specific purpose of

obtaining information to determine the feasibility of

underground injection at the pr oposed site." However, Florida

Administrative Code Rule 62 - 528.450(1)(b) requires an

exploratory well only "for those projects located in an area

where available information is lacking concerning geologic or

hydraulic confinement or existing information i ndicates that

geologic or hydraulic confinement may be poor or lacking."

For example, an exploratory well would be required in a remote

area (such as certain parts of Polk County) where the

Department had insufficient literature, studies, or prior

history concerning the general geology across and around the

site.

54. In this case, two nearby ASR systems are located in

the Englewood Water District and near the Peace River and use

the same storage zone as that proposed by the County. Those

systems have b een operating for a number of years, and the

County and Department can draw upon that experience. Given

this significant regional geologic information, an exploratory

well is not required. More importantly, the requirement for

an exploratory well applies only to Class I well construction,

and not Class V wells, and the Department properly exercised

its discretion to not apply that requirement to the County's

Class V application.

b. Signature on the application and other documents

55. Florida Administ rative Code Rule 62 - 528.340(1)(c)

requires that all permit applications by a local government be

signed by "either a principal executive officer or ranking

elected official." Also, subsection (2) of the same rule

requires that "reports required by permits and other

information requested by the Department shall be signed by a

person described in subsection (1) of this section [a

principal executive officer or the highest ranking elected

official], or by a duly authorized representative of that

person." Pet itioner contends that these requirements were not

met.

56. The County's application was signed by James E.

Caldwell, who was then the Manager of Sarasota County

Utilities. At that time, Mr. Caldwell had overall

responsibility for the County's utility ope rations. On August

27, 2002, James L. Ley, the County Administrator (and

principal executive officer of the County), also executed the

original copy of the application. (That is, on that date he

signed the original application underneath Mr. Caldwell's

s ignature.) By doing so, Mr. Ley cured any previous technical

deficiency in the application.

57. Responses to requests for additional information

which were submitted to the Department during the review

process were signed by one of the County's outside

c onsultants. However, on January 13, 2002, Mr. Ley submitted

a letter to the Department authorizing various County

employees and agents to act on his behalf in processing the

instant application. Accordingly, the outside consultant was

a duly - authorized r epresentative of the chief executive and

was authorized to sign those documents.

c. Satisfaction of injection criteria

58. Petitioner also contends that before a construction

permit may be issued, the County must meet all principal

treatment and disinfec tion requirements, as required by

Florida Administrative Code Rules 62 - 610.466 and 62 - 528.563.

However, those rules apply to permits which authorize the

injection of reclaimed water into the groundwater. Here, the

requested permit does not authorize inje ction, and therefore

those requirements do not apply.

d. Groundwater criteria

59. Even though Petitioner conceded at hearing that the

issue of whether the construction of the proposed wells would

harm the environment was not raised in her Petition, the

C ounty provided reasonable assurance that this was not an

issue of concern.

e. Adequacy of permit conditions

60. Petitioner also suggested at hearing that the

proposed conditions in the permit are insufficient. However,

she failed to show in what respect they were insufficient or

how they should be amended.

f. Water quality concerns

61. Florida Administrative Code Rule 62 - 528.605(3)

requires that a Class V well be constructed so that its

intended use does not violate the applicable water quality

standar ds. On this issue, the evidence establishes that the

construction of the proposed test well and monitor system will

not discharge, emit, or cause pollution. Indeed, a well and

monitor station does not emit or discharge pollution and, if

constructed accor ding to the technical requirements of Florida

Administrative Code Chapter 62 - 528, does not cause pollution.

Therefore, the County's compliance with the technical

requirements of the Department's regulations is reasonable

assurance that the proposed system will not cause pollution.

I. Request for Attorney's Fees and Costs

62. In its Proposed Recommended Order, the County has

requested an award of attorney's fees and costs on the theory

that Petitioner is a non - prevailing party who has participated

for a " frivolous, meritless, and improper purpose" within the

meaning of Section 120.595(1), Florida Statutes. This

argument is based on the assertion that Petitioner is a non -

prevailing party, that is, she failed to substantially change

the outcome of the propo sed final agency action which is the

subject of this proceeding, and she "failed to produce any

witnesses or evidence to support [her] claim that the proposed

permit that was the subject of this proceeding should not be

issued."

63. While it is true tha t Petitioner is a non - prevailing

party, she attempted to utilize the testimony of three expert

witnesses previously retained by the City of Venice, a former

party in Case No. 01 - 3516. Those subpoenas, however, were

quashed on August 16, 2002, and that rul ing was memorialized

in an Order dated August 19, 2002, or just before the final

hearing began. Without those witnesses, Petitioner's

presentation was obviously limited in some respects. 4

Further, until the final hearing, Petitioner assumed that

evidence in support of her allegation that the injectate would

harm the water quality would be admissible and relevant. (As

this Recommended Order clearly points out, however, not a

single drop of water can be injected into the well until a

modification of the pe rmit is obtained, and therefore such

evidence is irrelevant.) During the course of the hearing,

the undersigned sustained objections by the County and

Department to the introduction of such evidence. This ruling

had the effect of limiting the scope of th e issues to be

tried. Despite these limitations, her participation cannot be

described as being frivolous or meritless, as claimed by the

County, and it is found that she did not participate for an

improper purpose.

CONCLUSIONS OF LAW

64. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

65. In their Proposed Recommended Orders, the County and

Department assert that Petitioner has not d emonstrated

standing to pursue this action. As noted earlier, Petitioner

filed her Petition under Sections 120.569, 120.57(1), and

403.412(5), Florida Statutes. Clearly, Petitioner has not

pled, nor has she proven, that she is substantially affected

by t he Department's proposed issuance of a permit so as to

qualify for standing under Sections 120.569 and 120.57(1),

Florida Statutes.

66. To have standing under Section 403.412(5), Florida

Statutes (as it existed prior to 2002), to "intervene" in "any

adm inistrative . . . proceedings authorized by law for the

protection of the . . . water," Petitioner was required to

file a verified pleading asserting that the permitted activity

"has or will have the effect of impairing, polluting, or

otherwise injuring th e . . . water . . . of this state." As

amended, her pleading contains allegations sufficient to

satisfy the requirements for initiating this action. However,

she was still obliged to prove up those allegations at final

hearing. On all disputed and relev ant issues in this case,

the evidence clearly supports a finding in favor of the

County. Moreover, the central focus of Petitioner's claim is

that the proposed activity will pollute the waters of this

State. As previously found, this assertion is without merit

since there will not be any environmental harm caused by the

construction of the well, especially since there will be no

injection of reclaimed water until a modification to the

construction permit is obtained at a later date. In short,

because the re is no proof that the proposed action will harm

the environment, a necessary underpinning for establishing

standing under Section 403.412(5), Florida Statutes,

Petitioner lacks standing to pursue this action.

67. As the applicant, the County bears the burden of

showing by a preponderance of the evidence that it is entitled

to the requested permit. See Fla. Dep't of Trans. v. J.W.C.

Co., Inc., et al. , 396 So. 2d 778, 789 (Fla. 1st DCA 1981).

Within the context of this case, the County must prove

entit lement to a permit to construct a Class V, Group 3 well;

it does not have to show entitlement to a permit to operate

the well. To show entitlement, the County must affirmatively

provide the Department with reasonable assurance that the

proposed constructi on will not discharge, emit, or cause

pollution in contravention of Department standards and rules.

See Fla. Admin. Code R. 62 - 4.070(1).

68. The standards for issuing a construction permit for

a Class V injection well are found in Florida Administrativ e

Code Chapter 62 - 528. By a preponderance of the evidence, the

County has provided reasonable assurance that the proposed

activities authorized by the construction permit will not

cause pollution in contravention of Department standards and

rules. Petiti oner's numerous contentions that water quality

standards will be violated are premature at best and are thus

irrelevant since no injection of reclaimed water will occur

until when (or if) a modification of the construction permit

is obtained.

69. Petition er has also objected to the issuance of a

permit on the technical ground that the original application,

and subsequent data requests supplied by the County to the

Department, were not signed by the proper individuals, in

violation of Florida Administrative Code Rule 62 - 528.340(c).

As described above, although the manager of Sarasota County

Utilities signed the original application (with the

acquiescence of the Department), the chief executive officer,

Mr. Ley, later signed the application after objections by

third parties were raised. There is nothing in Florida

Administrative Code Rule 62 - 528.340(c) which prohibits this

sequence of events so long as the proper signature appears on

the document before the permit is actually issued. Likewise,

the fact that an outside consultant signed certain data

requests on behalf of the County is of no consequence since

Mr. Ley sent the Department a letter in January 2002

authorizing the consultant to act as his agent.

70. Petitioner also relies on Santa Fe Lake Dwel lers

Ass'n, Inc. v. State of Fla., Dep't of Envir. Reg. et al. ,

DOAH Case No. 85 - 4446, 1987 WL 62049 (DOAH Recommended Order

April 8, 1987; DER Final Order May 21, 1987), to support the

contention that the operational factors (including the effect,

if any , of the injectate on water quality) of the proposed ASR

are a proper subject of a construction permit proceeding.

That reliance is misplaced for two reasons. First, in that

case, the applicant sought to construct a wastewater treatment

facility, not a w ell. Second, that decision predated the

enactment of Section 403.0881, Florida Statutes, 5 which

negates the need for the submission of detailed construction

plans and specifications to obtain a construction permit.

Under the current statutory scheme, mo re detailed and accurate

data relating to these issues are obtained during the

construction and testing phase of the well. See also

Manasota - 88, Inc. v. Manatee County and State of Fla., Dep't

of Envir. Reg. , DOAH Case No. 85 - 2731, 1986 WL 32861 (DOAH

Rec ommended Order May 5, 1986; DER Final Order June 19,

1986)(operational concerns of a deep injection well should not

be considered in proceeding involving application for a

construction permit).

71. Finally, for the reasons given in Finding of Fact

63, t he County's request for attorney's fees and costs under

Section 120.595(1), Florida Statutes, should be denied.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Department of En vironmental

Protection enter a final order granting Permit No. 160882 - 001 -

UC authorizing the County to construct one Class V, Group 3

aquifer storage and recovery injection well and monitor well

system in Sarasota County, Florida.

DONE AND ENTERED this 1 9th day of April, 2004, in

Tallahassee, Leon County, Florida.

S

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of April, 2004.

ENDNOTES

1/ On March 31, 2004, Nona R. Schaffner, Esquire, filed a

Notice of Substitution of Counsel on behalf of the Department.

2/ Unless otherwise indicated, all future references shall be

to Florida Statutes (2001). Also, in 2002, Section 403.412(5),

Florida Statutes, was amended in various respects, including

the elimina tion of the automatic standing of citizens of the

State to initiate a challenge to the issuance of an

environmental permit by merely filing a verified petition.

3/ As of 20 months ago, the reclaimed water users included at

least 2,300 single - family hom es (who used the water for

residential lawn irrigation purposes), 19 golf courses, 10

multi - family developments, three parks, a sod farm, and various

County highway medians, right - of - ways, and other common areas.

4/ Even if those witnesses had been all owed to testify, it is

fair to conclude that most of their testimony focused on

operational concerns, which are not at issue in this

proceeding.

5/ Section 403.0881, Florida Statutes, became effective on

July 1, 1987.

COPIES FURNISHED:

Kathy C. Carter, Agency Clerk

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

Jeanne Marie Zokovitch Paben, Esquire

Legal Environmental Assistance Foundation, Inc.

1114 Thomasville Road, Suite E

Tallahassee, Florida 32303 - 6290

Rory C. Ryan, Esquire

Holland & Knight, LLP

200 South Orange Avenue, Suite 2600

Orlando, Florida 32801 - 3461

Gary K. Oldehoff, Esquire

Office of the County Attorney

1660 Ringling Boulevard, Second Floor

Sarasota, Florida 34236 - 6870

Nona R. Schaffner, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

Teri L. Donaldson, General Counsel

Department of Environmental Protection

3900 Commonwealth Boule vard

Mail Station 35

Tallahassee, Florida 32399 - 3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days of the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will render a final order in this matter.