86-003691 South Florida Water Management District vs. Gables Engineering, Inc. Status: Closed Recommended Order on Friday, September 18, 1987.

Summary: Res. not exempt from permitting. Res. did not demonstrate fully their entit- lement to operate as an ""Agri. closed system."" File initial applic. 30 days.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SOUTH FLORIDA WATER )

MANAGEMENT DISTRICT , )

)

Petitioner , )

)

vs. ) CASE NO. 86-3691

)

GABLES ENGINEERING, INC. , )

)

Respondent. )

___________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly

designated Hearing Officer, James E. Bradwell, held a public hearing in this

case on April 8, 1987 in West Palm Beach, Florida. The parties were allowed an

opportunity to submit memoranda supportive of their respective positions within

thirty (30) days of receipt of the transcript. The parties submitted proposed

recommended orders which were considered by me in preparation of this

Recommended Order. Proposed findings of fact which are not incorporated herein

are the subject of specific rulings in an Appendix to the Recommended Order.

APPEARANCES

For Petitioner : Sarah Nall, Esquire

South Florida Water Management District

3301 Gun Club Road

West Palm Beach, Florida 33402

For Respondent : Robert W. Stewart, Esquire

Corrigan , Zelman & Bander , P.A.

Rivergate Plaza, Suite 200

444 Brickell Avenue

Miami, Florida 33131

ISSUE

The issue presented for decision herein is whether or not Respondent,

Gables Engineering, is required to obtain a surface water management permit for

its property known as the G-Bar-E Ranch in Okeechobee County, Florida.

PRELIMINARY STATEMENT AND BACKGROUND

This action commenced with the filing of an Administrative Complaint and

Order by the South Florida Water Management District (District) wherein it

sought to require that Gables Engineering Inc. (Gables or Respondent) obtain a

surface water management permit for operation and maintenance of a surface water

management system on a tract of land owned by Gables, the G-Bar-E Ranch.

At the final hearing, Petitioner called as its witnesses Alvin Castro and

Fredrick Davis. Petitioner's Exhibits 1-3 were received into evidence.

Respondent called Donald Dillard as a witness. Respondent's Exhibits 1-4 were

received into evidence.

FINDINGS OF FACT

Upon consideration of the witnesses and their demeanor while testifying and

documentary evidence received, the following relevant facts are found:

1. The South Florida Water Management District (District) is a public

corporation of the State of Florida existing by virtue of Chapter 25270, Laws of

Florida, 1949, and operating pursuant to Chapter 373, Florida Statutes, and

Chapter 40E, Florida Administrative Code as a multipurpose water management

district with its principal office in West Palm Beach, Florida.

2. Cables Engineering, Inc., owns property known as the G- Bar-E Ranch

which is located in Okeechobee County, Florida. The property is located at the

confluence of Otter Creek and Taylor Creek. Otter Creek flows into Taylor Creek

which flows offsite into Lake Okeechobee.

3. On August 28, 1986, the District issued an Administrative Complaint and

Order which ordered Gables to obtain a surface water management permit pursuant

to Chapter 373, Part IV, Florida Statutes for the surface water management

system on the G-Bar-E Ranch. Gables refused and requested an administrative

hearing on the Complaint and Order.

4. Don Dillard is a Vice President of Gables and has overall

responsibility for operating the Ranch. He has been employed by Gables for nine

years. Gables has in its employ a ranch manager who remains on site. Until

recently, Gables operated the property as a cattle ranch. A portion of its herd

was sold to a former ranch manager who also remains on site.

5. Alvin Castro is a civil engineer employed by the District as an area

engineer which includes the area of Okeechobee County. Mr. Castro conducted a

site inspection on the G-Bar-E Ranch on January 6, 1987.

6. The inspection documented that there are two pond systems on the

subject property and eleven hydraulic connections from the subject property to

Otter Creek and Taylor Creek.

7. One pond system, identified as pond system No. 2, is located in the

mid-western area of the ranch east of Taylor Creek. It consists of three main

ponds which are interconnected in a chain with hydraulic control structures and

outfall ditches. The ponds were at one time natural ponds but have been

deepened and improved to provide a water source for cattle and to store and

convey water. A water control structure is located at the western end of each

of the three ponds. The structures are aligned and installed to convey water

from the upstream ponds to the downstream ponds. The control structures are

culvert riser type. A culvert is a man-made conduit that conveys water to a

point and allows it to flow. A riser is a half-section of a culvert or pipe

welded perpendicular to the outfall culvert. Its main function is to serve as a

support structure for weirs or flashboards, which regulate the upstream stages

in a ditch. It allows water, as its flows over the spillway or weir, to be

collected and directed to the outfall pipe or culvert. Mr. Castro observed

water flowing, at the time of inspection, through all three outfall ditches to

the south and westward from the pond system to a hammock area. The ponds have

been cleaned of vegetation and the culverts and risers have been maintained by

Respondent.

8. One culvert riser structure conveys water from Pond 1 to Pond 2 which

consist of a 96-inch riser and a 60-inch culvert, approximately 50 to 60 feet

long. At the time of the inspection, water was being discharged through the

control structure to an outfall ditch that connects Pond 1 to Pond 2. The

outfall ditch is a man-made ditch.

9. A second control structure connects Pond 2 to Pond 3 and

interconnecting ditches consisting of a 96-inch ditch riser with a 60-inch

culvert in place to hydraulically connect Ponds 2 and 3. The control structure

allows water to flow underneath a private road to Pond 3. Mr. Castro observed

water flowing from Pond 2 to Pond 3 at the time of his inspection. In the

absence of the culvert, the pond system would run together as a large pond. The

culverts alter the natural water storage capacity and drainage arrangement on

the G-Bar-E Ranch.

10. The third controlled structure is located on the southwest end of Pond

3. It consists of a 96-inch riser on a 60-inch culvert and a sheet pile weir.

At the time of his inspection, Castro observed that there was flow of water from

the control structure and Pond 3 through the outfall ditch to a hammock wetland

area to the southwest. (Petitioner's Exhibit 3, photos 1-6).

11. The other pond systems, identified as pond system 1, is located in the

northern portion of the property near the east bank of Taylor Creek. It

consists of three main ponds ranging in size of one to five acres. One pond is

connected to an outfall ditch to the southwest through a twenty-four inch

culvert which runs underneath an existing grass road. At the time of Mr.

Castro's inspection, it was conveying water from the pond westward into a

vegetated area. The other two ponds are connected to each other via a 12-inch

culvert underneath an existing grass road. The ditch is about three to five

feet wide. At the time of Mr. Castro's inspection, there was flow of water

between the two ponds. The downstream pond has an open connection (no control

structure) to a ditch, which ultimately discharges to Taylor Creek. At the time

of the inspection, water flow was observed (by Castro) in the ditch and was

being discharged from pond 6 to Taylor Creek. (Petitioner's Exhibit 3, photos

11-14) The ditches in the pond system are prismatic; fairly uniform in cross

section top width, depth and bottom width, with a straight alignment which

indicates that they are man-made. The pond system is well-maintained by

Respondent and free of vegetation. (TR, 21).

12. There are four ditch structural connections from the G- Bar-E Ranch to

Otter Creek. The easternmost structure consists of a 24-inch riser with a 15-

inch culvert. It serves to convey stormwater from an upstream ditch system on

the G-Bar-E property to Otter Creek and thereafter, offsite. There was flow to

the structure to Otter Creek at the time of Mr. Castro's inspection.

(Petitioner's Exhibit 3, photo 7). The second structure is located westward

from the first. It consists of a 20-inch riser and a 13-inch culvert.

(Petitioner's Exhibit 3, photo 8). The third structure is located westward from

the second. It consists of a 32-inch riser and a 16-inch culvert. Discharge of

water from the G-Bar-E property to Otter Creek through the third structure was

observed by Mr. Castro during his inspection. (Petitioner's Exhibit 3, photo

9). The fourth structure is located westward from the third, consisting of a

36-inch riser and a 24-inch culvert. (Petitioner's Exhibit 3, photo 10).

13. There are several manmade hydraulic connections to Taylor Creek on the

G-Bar-E Ranch. On the eastbank of the Creek, the northernmost, identified as

Ditch A, is a straight channel. At the time of Mr. Castro's inspection, it was

discharging water from the G-Bar-E property to Taylor Creek by means of a 36-

inch riser and a 30-inch culvert. The discharge served to drain the G-Bar-E

property. (Petitioner's Exhibit 3, photos 15-16). The next ditch south is a

prismatic channel with a straight alignment and uniform cross section, connected

to Taylor Creek by a 46-inch riser and a 36-inch culvert. At the time of Mr.

Castro's inspection, it was discharging water from the G-Bar E property to

Taylor Creek. (Petitioner's Exhibit 3, photos 19-22). The headwaters of the

ditch is a hammock wetland area at its upstream reach. (Petitioner's Exhibit 3,

photos 19-22). The next ditch south is connected to Taylor Creek via a

hydraulic control structure consisting of a 42-inch riser and a 30-inch culvert.

The structure has at least one flashboard, which is a temporary barrier affixed

to the slots on the riser and used to hold and regulate upstream water levels

and to increase or decrease the storage capacity. (Petitioner's Exhibit 3,

photos 24-25) The ditch drains a hammock area in the interior of the G-Bar-E

property which lies to the northeast. It controls water from the upper end of

the G-Bar-E property.

14. On the westbank of Taylor Creek, the northernmost connection is an

open connection to Taylor Creek. (Petitioner's Exhibit 2, sheet 1; Petitioner's

Exhibit 2, photo 17). South of that connection is another ditch with an open

connection to Taylor Creek. To the South is another open channel connection to

Taylor Creek which has a non-functional control structure at the downstream end.

(Petitioner's Exhibit 3, photo 23).

15. The existing system of ponds and ditches on the G-Bar-E Ranch will

collect, convey and can regulate upstream storage and flow rates to Taylor Creek

and Otter Creek.

16. In 1963 Gables conveyed to Okeechobee County a permanent easement

along Taylor Creek. The Taylor Creek easement runs through the G-Bar-E

property, roughly from the northeast corner to the southeasternmost corner. The

easement to Okeechobee County covers about 150 feet on each side of Taylor Creek

through the property. The purpose of the easement, as stated on the face of the

document, is for the construction necessary to improve the Taylor Creek channel

including widening, deepening, straightening, spoil placement and spoil

disposition, installation of drip and pipe drop spillways; for operation and

maintenance of the channel; and for the flowage of water through the channel,

spillways, and pipe drop spillways. The grantor (Gables) reserved the right to

use the easement land at any time, in any manner and for any purpose not

inconsistent with the full use and enjoyment thereof by Okeechobee County.

17. A small portion of the ditches on the G-Bar-E Ranch which connect to

Taylor Creek and the control structures in those ditches lie within the area

covered by the easement granted to Okeechobee County (approximately 150 feet).

However, the major portion of the ditches all lie outside the easement granted

to Okeechobee County. (TR 63-64; Respondent's Exhibit 4). The ditches serve to

drain the G-Bar-E property into Taylor Creek and benefit the G-Bar-E Ranch

property. This use is consistent with and permitted by the county's easement.

The ditches and structures serve the purpose of draining the property and

facilitating the flow of water to Taylor Creek. Mr. Dillard testified that

Gables Engineering has not constructed, repaired or maintained any of the

ditches during his nine year tenure with the company. (TR 67). However, no

evidence was presented to indicate that the ditches or structures were

constructed by Okeechobee County pursuant to the easement or that they benefit

Okeechobee County rather than Respondent.

18. In 1966 and 1967, Respondent granted to Okeechobee County a permanent

easement along Otter Creek and Bimeny canal, which run roughly from east to west

near the northern boundary of the property. The easement is for construction

necessary to improve Otter and Bimeny Creek including widening, deepening,

straightening, spoil placement and disposition, installation of drop and pipe

drop spillways; for operation and maintenance of the channel and the flow of

water to the channel, spillways and pipe drop spillways. Gables Engineering,

Inc. reserved the right to install pipe drop inlets, retain, impound and

regulate the flow of water into Otter Creek and Bimeny Canal lying within the

Grantor's land, provided they are installed in conformance with sound

engineering practice. Respondent reserved the right to use the easement

property at any time and for any purpose not inconsistent with its use by

Okeechobee County. (Respondent's Exhibit 2). Four control structures lie

within the easement area along Otter Creek and Bimeny Canal. A small portion of

the ditches from the G-Bar-E Ranch property leading to the control structure lie

within the easement area. There is no record evidence to establish that the

control structure, which facilitates the flow of water to Otter Creek and Bimeny

Canal, is maintained by Okeechobee County or in any way serve the purposes of

the easement to Okeechobee County. It is unclear who actually constructed the

structures. The structures serve to convey water from the G-Bar-E property to

Otter Creek. (Petitioner's Exhibit 3, photos 7 and 9). This appears consistent

with and expressly permitted by the easement granted to Okeechobee County.

19. In 1964 Gables Engineering granted Okeechobee County a bridge and

access road easement which consists of an existing graded road forty feet in

width running from State Road 15 to the west boundary of Taylor Creek. The

easement is for purposes in conjunction with the construction, maintenance and

operation of an access road and bridge across Taylor Creek. The access road and

bridge across Taylor Creek do not presently exist. The road easement crosses

over a culvert between two of the ponds in pond system 2. However the pond

system itself, including the outfall structure and ditch at the western end of

the system, lie outside the easement. The easement also crosses a culvert in

pond system 1, but the remainder of the pond system lie outside the easement.

(TR 63-64).

20. The ponds, control structures and ditches on the G-Bar- E Ranch serve

to drain the property internally and to Otter Creek and Taylor Creek. One pond

system drains water into a hammock area to the southwest. This system consist

of three ponds with control structures between each pond and an outfall ditch at

the southwestern end of the system. The other pond system drains water to

wetland areas and to Taylor Creek. It consists of three ponds, control

structures and outfall ditches to a wetland area and to a ditch leading to

Taylor Creek. While Respondent maintains that the culverts were installed for

the purpose of allowing vehicular access between the southern and northern areas

of the Ranch, the credible evidence reveals that the control structures primary

purpose is to drain the property and control the flow of water throughout the

system.

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has jurisdiction over the

subject matter and the parties to this action. Section 120.57(1), Florida

Statutes.

22. The parties were duly noticed pursuant to the notice provisions of

Chapter 120, Florida Statutes.

23. The authority of the Petitioner is derived from Chapter 373, Florida

Statutes ; Rule Chapter 40E-1, Part VI, Florida Administrative Code and Rule

Chapter 40E-4 Florida Administrative Code.

24. Section 373.416, Florida Statutes, authorizes the district to require

permits and impose such reasonable conditions, except for exemptions set forth

in Section 373.406, Florida Statutes, as are necessary to assure that the

operation or maintenance of a dam, impoundment, reservoir, appurtenant work, or

works will not be inconsistent with the overall objectives of the District and

will not be harmful to the water resources of the district.

25. Rule 40E-4.041, Florida Administrative Code, provides in pertinent

part as follows:

(1) Unless expressly exempt by law

or District rule a surface water

management permit must be obtained

from the District prior to the

construction, alteration,

operation, or abandonment of any

dam, impoundment, reservoir,

appurtenant work or works.

26. Section 373.403, Florida Statutes, provide the following pertinent

definitions:

(1) "Dam" means any artificial or

natural barrier, with appurtenant

works, raised to obstruct or

Impound, or which does obstruct or

impound, any of the surface waters

of the state.

(2) "Appurtenant works " means any

artificial improvements to a dam

which might affect she safety of

such dam or, when employed, might

affect the holding capacity of such

dam or of the reservoir or

impoundment created by such dam.

(3) "Impoundment" means any lake,

reservoir, pond or other

containment of surface water

occupying a bed or depression in

the earth's surface and having a

discernible shoreline.

(4) "Reservoir" means any

artificial or natural holding area

which contains or will contain the

water impounded by a dam.

(5) "Works" means any artificial

structures, including, but not

limited to, ditches, canals,

conduits, channels, culverts,

pipes, and other construction that

connects to, draws water from,

drains water into, or is placed in

or across the waters in the state.

(6) "Closed System" means any

reservoir or works located entirely

within agricultural lands owned or

controlled by the user and which

requires water only for the

filling, replenishing, and

maintaining the water level

thereof.

(8) "Maintenance" or "repairs"

means remedial work of a nature as

may affect the safety of any dam,

impoundment, reservoir, or

appurtenant work or works, but

excludes routine custodial

maintenance.

27. Rule 40E-4.021, Florida Administrative Code, provide the following

pertinent definitions:

(1) "Surface water management

permit" means a letter of

conceptual approval, construction

permit or operation permit.

(4) "Operation permit" means a

surface water management permit

issued by the District authorizing

the operation and maintenance of a

surface water management system in

accordance with the terms and

conditions of the permit.

(5) "Surface water management

system" means the collection of

devices, improvements, or natural

systems whereby surface waters are

controlled, impounded , or

obstructed. The term includes

dams, impoundments, reservoirs,

appurtenant works and works as

defined in subsections 373.403(1)-

(5), Florida Statutes.

28. Competent and substantial evidence was offered herein to establish

that G-Bar-E Ranch contains "impoundments" in the form of ponds which contain

surface waters and have a discernible shoreline within the purview of Section

373.416(3), Florida Statutes. The evidence also reveals that the G-Bar-E Ranch

contains "Works" in the form of ditches, conduits, culverts, and pipes that

connect to and drain water into the waters in this state within the purview of

Sections 373.416(5) and 373.019(8), Florida Statutes. The impoundments, ditches

and control structures function as a surface water management system and serve

to drain the property internally and to Otter Creek and Taylor Creek. As such,

it is concluded that Gables Engineering is required to obtain a permit to

operate and maintain the system as required by Section 373.416, Florida Statutes

and Rule 40E- 4.041, Florida Administrative Code.

29. The easements conveyed by Gables Engineering to Okeechobee County

neither on their face nor as applied, exempt Gables Engineering from the

requirement to obtain a permit from the impoundment and works on the G-Bar-E

Ranch. None of the impoundments and only a small segment of the works are

actually located within the easements. Additionally, neither Section 373.406,

Florida Statutes nor Rule 40E-4.053, Florida Administrative Code exempt the

portion of impoundments and works which lie within the drainage easements from

the requirement to obtain a permit to operate. The impoundments, ditches, and

control structures on the G-Bar-E Ranch control water on the property and drain

water from the Ranch property to Taylor Creek, Otter Creek and Bimeny Canal. On

their face, the easements permit Gables Engineering to install and operate

surface water impoundments and works on the Ranch property. Therefore, Gables

Engineering is subject to the permitting requirements of Chapter 373, Part IV,

Florida Statutes.

30. Gables Engineering is not exempt from obtaining a permit to operate as

an "agricultural closed system" pursuant to Section 373.406, Florida Statutes.

This is so since a "closed system" is defined by Section 373.403(8), Florida

Statutes, as any reservoir or works located entirely within agricultural lands

owned or controlled by the user and which requires water only for the filling,

replenishing, and maintaining the water level thereof."

31. The courts have construed the closed system exemption narrowly

indicating the requirements that such a system must be located entirely within

the lands of the user and cannot exist where there is discharge into waters of

the state. See, Corporation of the President of the Church of Latter-Day Saints

v. St. Johns Water Management District, 489 So.2d 59 (Fla. 5th DCA 1986).

32. The surface water management system on the G-Bar-E Ranch discharges

into Otter Creek and Taylor Creek, both waters of the state as defined by

Section 403.031(12), Florida Statutes, and ultimately flow into Lake Okeechobee.

In addition, several of the systems' ditches cross easements which belong to

Okeechobee County.

33. The District interprets an agricultural closed system to be those

systems which do not discharge offsite. An agency's interpretation of a statute

it is charged with administering is entitled to great weight. Department of

Environmental Regulation v. Goldring, 477 So.2d 532 at 534 (Fla. 1985).

34. Finally, the provisions of the Florida Water Resources Act are to be

liberally construed to effectuate their purpose. Section 373.616 and 373.6161,

Florida Statutes (1985). In so doing, persons claiming exemption under the

water resources Act must demonstrate fully, their entitlement thereto. For

these reasons, the Respondent, Gables Engineering, Inc., is not exempt from the

permitting requirements of Chapter 373, Part IV, Florida Statutes, as a closed

agriculture system.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED:

That the Petitioner, South Florida Water Management District enter a Final

Order requiring Respondent, Gables Engineering, to file an application to obtain

a surface water management permit to operate works on the G Bar-E Ranch pursuant

to Chapter 373, Part IV, Florida Statutes and that an initial application be

submitted to obtain a surface water management permit within 30 days of the

entry of the Final Order in this case.

RECOMMENDED this 18th day of September, 1987, in Tallahassee, Florida.

_________________________________

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings

The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 18th day of September, 1987.

COPIES FURNISHED:

Sarah Nall, Esquire

South Florida Water Management District

3301 Gun Club Road

West Palm Beach, Florida 33402

Robert W. Stewart, Esquire

Corrigan , Zelman & Bander , P.A.

Rivergate Plaza, Suite 200

444 Brickell Avenue

Miami, Florida 33131