05-000859 Northwest Florida Water Management District vs. Frank Marcotte Status: Closed Recommended Order on Tuesday, September 20, 2005.

Summary: Because Respondent did not complete work on a dam project and was unlawfully impounding water without a permit, corrective action is required.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NORTHWEST FLORIDA WATER )

MANAGEMENT DISTRICT, )

)

Petitioner, )

)

vs. ) Case No. 0 5 - 0859

)

FRANK MARCOTTE, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the

Division o f Administrative Hearings by its assigned

Administrative Law Judge, Donald R. Alexander, on August 2,

200 5 , in Crestview , Florida.

APPEARANCES

For Petitioner: Kevin X. Crowley, Esquire

Pennington, Moore, Wilkinson,

Bell & Dunlop, P.A.

Post Office Box 10095

Tallahassee, Florida 32302 - 2095

For Respondent: D. Michael Chesser, Esquire

Chesser & Barr, P.A.

1201 Eglin Parkway

Shalimar, Florida 32579 - 4211

STATEMENT OF THE ISSUE

The issue is whether Respondent should take corrective

action by opening a nd removing a drain gate and dewatering an

impoundment known as Lake Susan in Okaloosa Cou nty, Florida .

PRELIMINARY STATEMENT

On January 3 1, 200 5 , Petitioner, Northwest Florida Water

Management District (District), filed an Administrative

Complaint/Notice of Violation and Order (Administrative

Complaint) under Section 373.119, Florida Statutes (2004) , 1

which charged that Respondent, Frank Marcotte, who resides in

Crestview, Okaloosa County (County), Florida, had failed to

open a drain gate so that impounded water in Lake Susan could

be drained, and had failed to obtain a permit to maintain an

im poundment, as required by Se ction 373.413, Florida Statutes,

and Florida Administrative Code Rule 40A - 4.041. The

Administrative Complaint directs Respondent to take corrective

action by opening (and removing) a drain gate and dewatering

the impoundment. (As explained in greater detail in the

Findings of Fact, after the impoundment is drained, the

replacement of a portion of the drain pipe which runs under an

adjoining dam w ill be required before the District will allow

a new impoundment . These repairs, h owever, are not directly

addressed in the Administrative Complaint, nor are they

identified as part of the corrective action.)

On February 18, 200 5 , Respondent filed a Petition for

Administrative Hearing for the purpose of contesting the

charges. Among ot her things, he asserted that part of the

drain pipe under the dam and through which the water exits the

impoundment is located on public property owned and maintained

by the County and that the County is responsible for making

any repairs to that portion o f the pipe . The matter was

referred to the Division of Administrative Hearings on March

8, 2005, w ith a request that an Administrative Law Judge be

assigned to conduct a hearing. By Notice of Hearing dated

March 23 , 200 5 , a final hearing was scheduled on May 1 6, 200 5 ,

in Shalimar, Florida. At Petitioner's request, the f inal

hearing was rescheduled to August 2, 2005, in Crestview,

Florida.

On June 24, 2005, the District filed an Immediate Final

Order (IFO) stating that because of the present condition of

the dam, the integrity of Old Bethel Road (for which the dam

serve s as a road crossing) is in jeopardy and this condition

constitute s an emergency . The IFO require s Respondent to

begin dewatering within twenty - four hours and complete the

dewatering and re moval of the drain gate within seven days.

Th e IFO has been appealed by Respondent to the First District

Court of Appeal. See Frank Marcotte v. Northwest Florida

Water Management District , Case No. 1D05 - 3569. The parties

agree that the IFO is not in iss ue here.

On July 29, 2005, Respondent filed a Motion to Add Party

and Motion for Continuance. Both Motions were denied by Order

dated August 1, 2005.

At the final hearing, the D istrict presented the

testimony of Lance Laird, a professional engineer , chi ef of

the District's Bureau of Surface Water Regulation, and

accepted as an expert , and Jerry Sheppard, a field

representative at the District 's Pensacola office. Also, it

offered Petitioner's Exhibits 1 A and B and 2 - 3 9 , which were

received in evidence. Respondent testified on his own behalf

and presented the testimony of Albert Holzschuh, the County's

R isk M anagement Director; John W. Herndel, a dam construction

contractor; and Charles Dunn, a professional engineer and

consultant. Also, he offered Respo ndent's Exhibits 1 A and B ,

2 A - C , and 3 , which were received in evidence. The parties

also offered Joint Exhibit 1, which was received in evidence.

A Transcript of the hearing was filed on August 2 3 , 2005.

Proposed f indings of f act and c onclusions of l a w were due no

later than September 2, 2005, and the same were timely filed

by Petitioner. On September 7, 2005, Respondent submitted his

Proposed Recommended Order. Because Petitioner has not

objected to the timeliness of the filing, both filings have

be en considered in the preparation of this Recommended Order .

On September 7, 2005, Respondent filed a Motion to Take

Additional Evidence After Administrative Hearing and Before

Order (Motion) . By his Motion, Respondent s eeks to have

received in evidence a copy of a letter from the County dated

August 25, 2005, which summarize s the findings of the County's

inspection of the drain pipe made after the final hearing. On

September 12 , 2005, Petitioner filed a response in opposition

to the Motion. Because the c ontents of the letter are not

dispositive of the issues in this case, but rather involve

collateral matters and are not prejudicial to Petitioner , the

Motion is granted , and the letter has been considered in

Finding of Fact 4 2 .

FINDINGS OF FACT

Based upo n all of the evidence, the following findings of

fact are determined:

a. Background

1. On an undisclosed date, but at least se veral decades

ago, a series of recreational earth dams and impoundments were

built by a Mr. Kennedy, who developed an area now known as the

Kennedy Lake Subdivision (Subdivision) , which lies around five

miles northwest of downtown Crestview. The small lakes

created by the dams are known as the Kennedy Lake Chain, one

of which is Lake Susan , which lies on Respondent's property .

At least three or four of the upper lakes drain into Lake

Susan through a series of large outflow pipes, which have been

authorized by the District .

2. The level of Lake Susan is regulated by a drain gate.

The drain gate allows water to flow from Lake Susan through a n

approximate 100 - foot drain pipe underlying a dam and roadw ay

into another lake and wetlands area . The evidence shows that

the dam which impounds Lake Susan is more than ten feet but

less than twenty - five feet in height. See Petitioner's

Exhibit 33. Thus, any work or alterations to the dam and

impoundment are subject to the District's jurisdiction. See

Fla. Admin. Code R. 40A - 4.041(1)(a).

3 . According to Mr. Marcotte, the original drain pipe,

or barrel, under the roadway was first insta lled by the County

around 1939. The dam and impoundment were apparently built

many years later when the S ubdivision was developed. Because

the evidence shows that barrels generally have a life of

twenty years or so at most , it is likely that the pipe has

been replaced at least one time since 1939, most likely when

the dam was built.

4 . A small portion of the drain pipe under the dam

(around thirty feet in length ) is situated on Respondent's

property while the remainder is located on County right - of -

way . The parties agree that Respondent has the responsibility

for maintaining the impoundment. (Documents submitted into

evidence also suggest that the Lake Susan Homeowner ' s

Association (Association) , of whom Respondent is apparently a

member , assumed this responsibility at one time . ) Finally, a t

least a part of the dam which impounds the water is located on

Respondent's property.

5 . A two - lane paved road known as Old Bethel Road runs

over the crest of the dam and serves as a n important connector

road bet ween State Highway 85 and U.S. Highway 90 just west of

Crestview. On either February 22, 1973 or 1978 , Associated

Developers of Florida, Inc. , whose relationship to Mr.

Kennedy, if any, is unknown , quit - claimed its interest in the

road to the County . See Respondent's Exhibit 3. ( Because the

copy of the deed provided by Respondent is partially

illegible, there is some

confusion ove r the exact date . ) Since that time, the County

has owned and maintained Old Bethel Road.

6 . Despite the quit claim deed, for several years after

this dispute first arose in 1999 or 2000 , the County denied

responsibility for maintaining anything except the actual

roadway above the dam . Thus, it denied responsibility for

repairing the 70 - foot portion of the drain pipe which l ies on

its right - of - way. At the hearing, however, a County

representative acknowledged that it has the responsibility to

maintain and repair that portion of the drain pipe which runs

underneath the dam and lies in the County right - of - way.

7 . In 1996, Respondent , who is an engineer and

professional helicopter pilot , purchased a residence on Lake

Susan located at 1033 Tallokas Road (Section 1, Township 3

North, Range 24 West) , Crestview . Tallokas Road is a local

road which runs in a northeastern direct ion from Old Bethel

Road ( starting approximately 1.1 miles north of U.S. Highway

90 ) into the S ubdivision . Lake Susan lies just north of the

intersection of , and between, Tallokas Road and Old Bethel

Road ; Respondent's property fac es Lake Susan to the sou th west .

8 . In 1998, the A ssociation performed certain repair

work on the dam (apparently without authorization from the

District) , but Hurricane Georges struck the Florida Panhandle

later that year causing at least three of the dams in the

Kennedy Lake Ch ain to fail . When the upper dams failed, trees

from those impoundments were swept into the deepest part of

Lake Susan "knocking [the] standpipe off of its base." Except

for a "rusted pipe," however, the dam did not otherwise fail.

9 . On August 5 , 1999 , Respondent (on behalf of h imself

and the Association) , through his engineer, Mr. Dunn , filed an

application with the District to perform certain repair s and

alterations on the dam caused by Hurricane Georges. In the

application, Mr. Dunn recited that Re spondent would be

responsible for all maintenance of the dam and associated

appurtenances.

10 . On December 1, 1999, the District issued Surface

Water Management Permit No. 4 - 99 - 021 (Permit) to the "Lake

Susan Homeowners Association c/o Francis Marcotte" for the

"Repair of Non - Agricultural Impoundment." The Permit provided

that all construction should be completed by November 30,

2002. Under District protocol, once the construction work is

successfully completed and approved , the District issues an

Oper ation and Maintenance letter (O & M letter) , which a llows

the permittee to impound water. Until an O & M letter is

issued, however, a permittee cannot legally impound water.

1 1 . The District is authorized by rule to "to impose on

any permit granted . . . such reasonable conditions as are

necessary to assure that the permitted [activity] will be

consistent with the overall objective of the District." Fla.

Admin. Code R. 40A - 4.041(3). Pursuant to this authority, the

District imposed eighteen conditions in the Permit, two of

which are described below.

1 2 . First, Condition No. 11 of the Permit required that

the old spillway sys tem in the dam be excavated and replaced

unless the old piping system was determined to be serviceable.

It also required that "[i ]f the old piping system is

determined to be serviceable, the District shall be notified

by the project engineer." T he District interprets this

provision to mean that after the work authorized under the

Permit has been completed, the project engineer (Mr. Dunn)

must provide the District with a statement as to whether or

not the entire piping system under the dam is serviceable.

Mr. Dunn , however, construed the provision as only requiring

hi m to certify that portion of the pipe which he found to be

service able ; no other statement was required . The District's

interpretation is reasonable and is hereby accepted.

1 3 . Next, Condition No. 15 state s that the authorized

facility w ill not be considered complete until an As - Built

Certification and Completion Repor t is filed by the project

engineer, and the D istrict determine s that the project is in

accordance with the approved design and any permit conditions

stipulated in the construction authorization. The District

interprets this provision to mean that unless a ll portions of

the drain pipe which are not serviceable are replaced ,

including that portion which lies within the County right - of -

way, the project w ill not be considered complete and no

impoundment of waters w ill be allowed. This construction of

the prov ision is a reasonable one and has been accepted. (The

District has not involved itself in the dispute between

Respondent and the County over who has the responsibility for

replacing that portion of the pipe which lies in the County's

right - of - way.)

1 4 . As required by Condition No. 5, o n June 28, 2000, a

pre - construction meeting was held. The meeting was attended

by a County engineer, Respondent's wife, Mr. Dunn, the project

contractor (B & H Moving Contractors, Inc. ) , and District

personnel , including Mr. Laird, a District engineer . The

discussions that occurred at the meeting are memorialized in a

memorandum drafted by Mr. Dunn . See Petitioner's Exhibit 7.

1 5 . During preliminary excavation work performed by B &

H Moving Contractors, Inc., it uncov ered that portion of the

outlet (drain) pipe lying on Respondent's property and found

"two holes . . . in the second joint from the old riser "

caused by corrosion. Based on this observation , which was

disclosed at the pre - construction meeting , Mr. Dunn no ted in

his memorandum that the "entire pipe may have problems that

could result in undermining Old Bethel Road." At the meeting,

however, t he County declined to a gree that it would repair

that portion of the pipe on its right - of - way until it could be

esta blished "that the pipe under the road was the

responsibility of the County."

1 6 . On September 20, 2000, Mr. Laird received a

telephone call from Respondent who said that the County had

refused to replace the pipe and the parties were at an

impasse. Respo ndent also told Mr. Laird that until the pipe

was replaced, he would not shut the gate. Mr. Laird advised

Respondent not to allow Lake Susan "to stage up" until the

pipe was replaced. A summary of the telephone conversation is

found in Petitioner's Exhib it 10, which was prepared by Mr.

Laird immediately after the call.

1 7 . On September 26, 2000, Mr. Dunn advised Respondent

by letter that B and H Moving Contractors, Inc. had completed

the work on the dam in accordance with the plans and

specifications. T his included replacement of the drain pipe

which lay on Respondent's property. The letter confirmed Mr.

Dunn's understanding that Respondent had agreed to "not close

the gate until Okaloosa County completes the replacement of

their pipe under Old Bethel R oad." See Petitioner's Exhibit

11.

1 8 . Over the following months, Respondent engaged in

negotiations with the County i n an effort to get the County to

assume responsibility for its pipe. On August 17, 2000, the

County advised Respondent that it would no t replace the pipe.

However, its engineer agreed to recommend to the Board of

County Commissioners that the County would "cover the material

cost of the pipe and the installation of the base and paving

of the roadway." The actual work, however, would be performed

by Respondent "[s]ince Lake Susan is a private lake and the

pipe is part of the control structure for the lake." See

Petitioner's Exhibit 12. Respondent was understandably

reluctant to perform any work on County property since that

would expose him to liability if a subsequent unforeseen event

should occur.

1 9 . Although the work was probably completed much

earlier, Mr. Dunn filed an "As - Built Certification and

Completion Report by Project Engineer (Report) on April 1,

2002 , as required by Condi tion No. 15 . See Petitioner's

Exhibit 13. That Report indicated as follows:

The project was constructed in substantial

conformance with the plans and

specifications prepared by me. All

hydraulic, structural, and environmental

considerations appear to ha ve been

adequately addressed. The County still has

not replaced their pipe under Old Bethel

Road. The permittee has completed all work

permitted to be done by him and, in my

opinion, the project is completed.

20 . As noted above, Condition No. 11 requir ed that "[i]f

the old piping system is serviceable, the District shall be

notified by the project engineer." According to Mr. Dunn , he

did not include a certification on the County's drain pipe

because he "highly suspected " that the drain pipe lying withi n

the County right - of - way was unserviceable and in the same

condition as the pipe found on Respondent's property.

Therefore, he limited his certification to the thirty feet of

pipe that was replaced.

2 1 . After the Report was filed, a lengthy series of

co rrespondence between the parties ensued. On April 5, 2002,

Mr. Laird wrote Respondent acknowledging receipt of the

project engineer's Report . He stated that he was not in

agreement with Mr. Dunn's certification that the project was

complete because the parties had previously concluded at the

pre - construction meeting that the entire pipe was

unserviceable. He advised Respondent that the "impoundment

must be dewatered and maintained in a dewatered condition

until such time as this issue is resolved." See Petitioner's

Exhibit 1 4 . As a consequence, an O & M letter was never

issued by the District.

2 2 . On May 7, 2002, Respondent responded to Mr. Laird's

letter and s tated that he was "continuing . . . to lower the

lake to that of the adjoining one." He a lso stated that

because he had done everything required under his P ermit, he

hoped that the matter would be considered complete. See

Petitioner's Exhibit 15.

2 3 . On May 15, 2002, Mr. Laird responded to the above

letter and reiterated that given the que stionable condition of

the pipe (which lay on County right - of - way), pursuant to

Condition 15 the repairs to the impoundment would not be

considered complete and the impoundment of water would not be

authorized until the entire pipe had been replaced. He

r equested that Respondent "maintain the water in the lake at a

lower level until such time as this issue is resolved."

Finally, h e reminded Respondent that the District's position

on the on - going dispute with the County was that it did not

matter who repla ced the pipe, so long as it was "replaced and

done in a legal manner." See Petitioner's Exhibit 16.

2 4 . By letter dated August 9, 2002, a District

regulatory administrator , Mr. Morgan , advised Respondent that

District staff had observed that Lake Susa n was once again

impounding water and that he must notify the District within

fourteen days that the impoundment has been dewatered ,

together with his plans for the replacement of the pipe under

Old Bethel Road. See Petitioner's Exhibit 17.

2 5 . On Augus t 26, 2002, Respondent answered the above

letter and advised in part that the outlet valve had been

stolen by vandals which caused the lake to fill up but that

"the valve is now open and the water level is falling." He

also asked that his current permit b e extended until the

County agreed to perform the work. See Petitioner's Exhibit

18.

2 6 . In response to this request, by letter dated

September 3, 2002, the District extended the deadline for

completion of the project until March 1, 2003. See

Petition er's Exhibit 19.

2 7 . On November 21, 2002, Mr. Morgan again advised

Respondent by letter that the District staff had observed that

Lake Susan remained "at or near normal pool." The letter went

on to say that while the District recognized Respondent's

"di fficulties in resolving [the issue with the County]," he

was not allowed to impound water until the matter was

resolved. See Petitioner's Exhibit 20.

2 8 . On March 3, 2003, a District field representative,

Jerry Sheppard, met with Respondent concerning t he level of

water in the impoundment. He memorialized the conversation in

a memorandum prepared the same date. See Petitioner's Exhibit

21. According to the memorandum, the pond was "full due to

excessive rains," and even though the gate was open, it ha d

only "partial flow through the outlet pipe but [was] not

opened adequately to pass storm water accumulated in the upper

pond." The memorandum further stated that Respondent had

assured him that "he will open the gate an additional round or

two to allow further dewatering to take place while he is away

on his job for the next two weeks." At the end of the

meeting, Mr. Sheppard "strongly urged that the pond remain

dewatered."

2 9 . On March 12, 2003, Mr. Laird advised Respondent by

letter that his Permit had expired on March 1, 2003. This

meant that Respondent could not undertake any work on the

facility without District approval and that he must maintain

the facility in a dewatered condition. See Petitioner's

Exhibit 22.

30 . On January 21, 2004, Mr. M organ sent Respondent a

letter advising that the District staff had observed "that

Lake Susan was once again impounding water to within 1.5

inches of the designed water level." He added that "the

facility must be completely dewatered, and maintained

dewat ered, until such time as the issue has been resolved."

The letter warned that if Lake Susan was not dewatered, a

formal enforcement action would be initiated. Finally, t he

letter requested that Respondent contact the District within

fourteen days "notici ng [the District] that the impoundment

has been dewatered and [that Respondent] plan [ned] to replace

the old pipe under Old Bethel Road, or [Respondent] will

remove the head gate from the riser base." See Petitioner's

Exhibit 23.

3 1 . On March 3, 2004, Re spondent, Mr. Laird, and various

County representatives met in Crestview in an effort to

resolve the issue of who would replace the remaining portion

of the drain pipe. The discussions at the meeting are

recorded by Mr. Laird in a memorandum dated March 4 , 2004.

See Petitioner's Exhibit 24. The memorandum states in part

that "all [participants] agreed that the pipe is not

serviceable as a spillway pipe." At the meeting, the County

refused to accept responsibility for fixing the drain pipe.

Its Public W orks Director (Director) also stated that even if

a quit claim deed showed that the pipe was on their right - of -

way, the County would not repair the pipe; instead, the

Director asserted that the County would prevent Respondent

from impounding water. Finall y, contingent upon the Board of

County Commissioners approving her recommendation, the

Director agreed to purchase the seventy feet of pipe if

Respondent would perform all excavation work and install the

pipe at his own expense. See Petitioner's Exhibit 2 4.

3 2 . By letter dated March 5, 2004, the Director

confirmed in writing her previous offer to Respondent that she

would request authorization from the County to purchase

seventy feet of pipe, reconstruct Old Bethel Road after the

pipe was replaced, and cl ose the road during the construction

process. However, the Director expected Respondent to provide

all other necessary material and work effort associated with

the pipe replacement. See Petitioner's Exhibit 25. On March

8, 2005, Respondent agreed to acc ept the County's offer. See

Petitioner's Exhibit 26.

3 3 . Presumably based on this understanding, o n March 8,

2004, Mr. Morgan advised Respondent that he would "allow up to

90 days for [Respondent] to be able to make the necessary

replacement." This was followed by a letter from Mr. Laird on

April 12, 2004, requesting that Respondent provide a proposed

work schedule so that the District could generate an order

extending the time for the work to be completed. See

Petitioner's Exhibit 27.

3 4 . On April 27, 2004, Respondent (who was off - shore in

the Gulf of Mexico on flight duty) sent a "rapid memo" to Mr.

Laird advising that he had just received a verbal bid offer

and would forward a work schedule as soon as a formal contract

was signed. See Petitioner's Exhibit 29. He also sent Mr.

Laird a memorandum on this subject on May 13, 2004, but that

document was not made a part of this record.

3 5 . By letter dated May 19, 2005, Mr. Laird answered

Respondent's two memoranda and indicated that two technical

issues needed to be resolved. He also enclosed for

Respondent's review a copy of a draft permit which authorized

the work to be performed. See Petitioner's Exhibit 30.

3 6 . Sometime during this time period, and perhaps after

he received the bid, Respondent dec ided that he would not

assume the responsibility (and liability) for working on

County property and offered instead to pay the County for one -

half of the project's cost ( which totaled around $25,000.00)

so long as the County would do the work. Apparently, the

County refused this offer, and the project was never

undertaken.

37. On August 12, 2004, a District administrator (Norman

Velazquez) advised Respondent's counsel by letter and

facsimile that District staff had inspected Lake Susan that

morning and ob served that "the impoundment was operating at

full capacity contrary to previous District communications

ordering the dewatering of it." The letter noted that the

matter had been discussed by telephone the same day and that

counsel had agreed that the inf ormation in the letter would be

shared with Respondent in a timely manner. See Petitioner's

Exhibit 31.

3 8 . By letter dated September 13, 2004, Mr. Velezquez

again advised Respondent's counsel that a follow - up inspection

that day revealed that "the impou ndment was operating at full

capacity." The letter also stated that Respondent "is

required to dewater the unauthorized impoundment of water by

Monday, September 21, 2004." Finally, Respondent was warned

that if he did not dewater Lake Susan, it would "l eave [the

District] no choice b ut to issue an Administrative Complaint

Order against Mr. Marcotte ." See Petitioner's Exhibit 32.

3 9 . On February 1, 2005, the District issued its

Administrative Complaint.

40 . Between April 2003 and December 2004, a D istrict

field representative (Mr. Sheppard) visited the site on a

number of occasions. On each occasion, he observed that the

impoundment was full and that dewatering had not occurred .

4 1 . In July 2005, the County reversed its position and

agreed that it had the responsibility to replace the pipe if

it was not serviceable. The County also agreed to hire a

vendor who w ould place a special video camera in the pipe to

detect any holes, rust, or other deterioration. The County

further agreed that if defects were found, it would re place

the pipe at its own expense . This was confirmed at hearing by

the County's Risk Management Director.

4 2 . On August 25, 2005, the County advised Respondent by

letter that the inspection had taken place, that the County

was working on a solution and probably intend ed to "insert a

sleeve inside the existing pipe" to correct the problem, and

that the project had been assigned to the Public Works

Director with "a high priority." The current s tatus of the

project is unknown .

4 3 . Although Respondent argues in his Proposed

Recommended Order that the District has never established that

the County's portion of the drain pipe is unserviceable, the

greater weight of evidence shows the opposite to be true.

Indeed, all of the experts w ho testified at hearing agree d

that the drain pipe should be replaced due to its age and the

defects observed when the dam was excavated and a portion of

the pipe exposed for inspection in 2000. In addition, a part

of t he earthen dam is saturated with moi sture, and voids have

developed in the interior of the structure. Collectively,

these conditions have led the District to properly conclude

that the impoundment of the water constitutes a danger to the

public since Old Bethel Road might collapse at any ti me.

Because of this, no impoundment of waters should occur until

the pipe is replaced.

CONCLUSIONS OF LAW

4 4 . 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.

4 5 . Section 373.119(1), Florida Statutes, authorizes the

District's Executive Director to issue a written complaint

upon an alleged violator whenever he "has reason to believe

that a violation of any provision of this chapter or an y

regulation promulgated thereunder or permits or order issued

pursuant thereto has occurred, is occurring, or is about to

occur." Here, t he Administrative Complaint alleges that

Respondent has violated Section 373.413, Florida Statutes, and

Florida Admin istrative Code Rule 40A - 4.041.

4 6 . Subsection (2) of the statute p rovides in relevant

part that "[a] person proposing to construct or alter a[n] . .

. impoundment . . . shall apply to the governing board or

department for a permit authorizing such cons truction or

alteration." Subsection (1)(a) of t he cited rule provides in

part that a general permit is required by any person for work

which "impounds or may impound water by utilizing a dam which

is or will be at least 10 feet but less than 25 feet in he ight

. . . from the lowest elevation of the outside limit of the

barrier to the maximum elevation of the barrier[.]"

Respondent has not disputed that the District has jurisdiction

over the dam and impoundment.

4 7 . Under the theory of this case, the Dist rict alleges

that Respondent was issued a permit to conduct certain work on

a dam and impoundment; that he failed to satisfactorily

complete the work (because the entire drain pipe was not

replaced); that an O & M letter was never issued and the

permit has now expired; and that Respondent has continued to

unlawfully impound water without a permit, as required by

Florida Administrative Code Rule 40A - 4.041 and Section

373.413(2), Florida Statutes. Until the entire drain pipe is

replaced and the dam can be ce rtified as being safe to

operate , the District is seeking an order requiring Respondent

to take corrective action by removing the gate on the drain

pipe and dewatering Lake Susan.

4 8 . By a preponderance of the evidence, the District has

established that Respondent is impounding water (Lake Susan)

without a permit; that the drain pipe under Old Bethel Road

(which lies within the County's right - of - way) is unserviceable

and needs to be replaced ; that the impoundment of water

threatens the integrity of Old B ethel Road; and that the

requested corrective action should be taken. In reaching this

conclusion, the undersigned notes that Mr. Marcotte has been

involved in a long, expensive, and frustrating dispute with

the County in seeking to have the County rep lac e the pipe. At

the same time, the District has show n remarkable restraint by

allowing Respondent a number of years to resolve his dispute

with the County before issuing its administrative complaint .

Given the dangerous conditions in the dam, which consti tute a

potential danger to the public, further delay is not

warranted. Finally, e ven though the County eventually changed

its position in July 2005, and now says that it will make

the necessary repairs, u ntil th ey are completed and approved

by the Dis trict , Respondent is legally obligated to dewater

Lake Susan . Therefore, the requested corrective action is

warranted.

Based on the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Northwest Florida Water Management

District e nter a final order sustaining the charges in the

Administrative Complaint and mandating the following

corrective action:

1. Within fifteen days from the date of the final order,

Respondent shall begin dewatering the impoundment known as

Lake Susan at the maximum rate considered safe by Respondent's

engineer.

2. Within forty - five days from the effective date of the

final order, Respondent shall have Lake Susan completely

dewatered and shall completely remove the drain gate to ensure

that the impoundment r emains completely dewatered.

DONE AND ENTERED this 20th day of September, 2005, in

T allahassee, Leon County, Florida.

S

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahass ee, 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 20th day of September, 2005.

ENDNOTE

1/ A ll future references are to Florida S tatutes (200 4 ).

COPIES FURNISHED:

Douglas E. Barr, Executive Director

Northwest Florida Water Management District

81 Water Management Drive

Havana, Florida 32333 - 4711

D. Michael Chesser, Esquire

Chesser & Barr, P.A.

1201 Eglin Parkway

Shalimar , F lorida 32579 - 4211

Kevin X. Crowley, Esquire

Pennington, Moore, Wilkinson,

Bell & Dunbar, P.A.

Post Office Box 10095

Tallahassee, Florida 32302 - 2095

Douglas L. Stowell, Esquire

Pennington, Moore, Wilkinson,

Bell & Dunbar, P.A.

Post Office Box 10095

Tallahassee, Florida 32302 - 2095

NOTICE OF RIGHT TO FILE 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 t hat

will render a final order in this matter.