94-000001RX Pasco County (Ryals Road) vs. Department Of Environmental Protection Status: Closed DOAH Final Order on Monday, October 31, 1994.

Summary: Alleged unpromulgated rule essentially same as adopted rules. Adopted rules had rational basis. Minimum set back rules dont authorize surface discharges

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PASCO COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 94-0001RX

)

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondent. )

___________________________________)

FINAL ORDER

On February 11, 1994, a formal administrative hearing was held in this case

in Tampa, Florida, before J. Lawrence Johnston, Hearing Officer, Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Edward P. de la Parte, Jr., Esquire

David M. Caldevilla, Esquire

de la Parte, Gilbert & Bales, P.A.

One Tampa City Center, Suite 2300

Tampa, Florida 33601-2350

For Respondent: Jennifer L. Mason, Esquire

Douglas H. MacLaughlin, Esquire

Assistant General Counsel

Department of Environmental Protection

2600 Blairstone Road

Tallahassee, Florida 32399-2400

STATEMENT OF THE ISSUES

The issues in raised in the three-count rule challenge in this case are:

Count I, whether various Department statements concerning discharges from

perimeter ditches on rapid rate land application wastewater disposal systems

constitute an unpromulgated rule that violates Section 120.535, Fla. Stat.

(1993); Count II, if so, whether the unpromulgated rule is an invalid exercise

of delegated legislative authority under Section 120.56, Fla. Stat. (1993); and,

Count III, whether F.A.C. Rules 17-610.517(2) and 17-610.522 are invalid

exercises of delegated legislative authority under Section 120.56, Fla. Stat.

(1993).

PRELIMINARY STATEMENT

The Petitioner's rule challenge in this case was filed on January 3, 1994.

Initially, it was scheduled for final hearing in Tallahassee on January 31,

1994, but the parties filed a Joint Motion to Consolidate [with related

permitting cases, DOAH Case Nos. 92-1604, 92-1653, and 92-1654] and Reschedule

[to be heard with the permitting cases, which were scheduled for final hearing

in Tampa on February 8-11, 1994.] It later was decided that final hearing in

this case would occur on Friday, February 11, 1994, and that parts of the

evidence admitted in the permitting cases could be utilized as evidence in this

case.

The rule challenge petition contained a request for an award of attorney

fees and costs under Section 120.535, Fla. Stat. (1993). On February 4, 1994,

the Department filed a motion in limine to strike that request on the grounds

that it was premature. At the outset of the final hearing in this case, the

motion was granted without objection, and the request was stricken.

On February 4, 1994, the Department also filed a Motion to Strike Count I

of the rule challenge petition on the ground that the alleged statement was

essentially identical to the rules challenged in Count III. The Motion to

Strike was argued at the outset of the final hearing and was denied.

At the final hearing, the County called the Department's Reuse Coordinator,

David W. York, Ph. D., P.E., and one of its permitting engineers, Stephen G.

Thompson. The County also had County Exhibits A through F admitted in evidence.

The Department cross-examined but did not call any additional witnesses and only

had one exhibit (Dept. Exhibit A) admitted in evidence.

At the end of the hearing, the County ordered the preparation of a

transcript of the final hearing and moved without objection for proposed final

orders to be deferred to coincide with the submission of proposed recommended

orders in the permitting cases. The motion was granted, and as a result the

deadline for proposed final orders ultimately was deferred until July 31, 1994.

On July 29, 1994, the County filed its Second Motion for Official

Recognition. Except for the motion's reference to F.A.C. Rule 17-610.517, the

Department opposed the motion, and the Department's opposition is well taken.

Except to the extent that official recognition of F.A.C. Rule 17-610.517 need be

taken, the motion is denied.

Proposed final orders actually were filed on August 1 and 2, 1994. In

addition, Pasco County's Notice of Supplemental Authority was filed on August

31, 1994. Explicit rulings on the proposed findings of fact contained in the

parties' proposed final orders may be found in the Appendix to Final Order, Case

No. 94-0001RX.

FINDINGS OF FACT

1. On or about July 25, 1989, Stephen G. Thompson, Permitting Engineer

with the Department of Environmental Regulation (DER), predecessor of the

Department of Environmental Protection (DEP), wrote a memorandum to Howard

Rhodes, Deputy Director of DER's Bureau of Water Facilities Planning and

Regulation. The memo relayed a question being posed by an engineering

consultant working for Pasco County on its Lake Padgett Effluent Disposal

System, DER construction Permit No. DC51-159899. The question was whether

Special Condition 15 should be deleted from the permit.

2. The Lake Padgett permit was for a rapid rate infiltration (percolation

pond) land application system for the disposal, via ground water recharge, of

domestic wastewater effluent. Through the question passed along to Rhodes,

Rhodes understood that the system included percolation ponds and drainage

ditches on the site, which the County's engineer referred to as "perimeter

ditches." Rhodes was given to understand that the perimeter ditches were

designed to improve the performance of the system by lowering the ground water

table at the site and increasing the hydraulic capacity of the ponds. The

question posed by the County's engineer indicated to Rhodes that Special

Condition 15 to the Lake Padgett permit prohibited discharges from the perimeter

ditches into wetlands, citing Section 403.086 of the Florida Statutes. The

County's engineer suggested:

Since these perimeter ditches are being installed

100 feet from the wetted perimeter of the

percolation ponds, I believe it is correct to

define the water in said ditches as groundwater

rather than wastewater effluent. Therefore, I do

not believe that Chapter 403.086 would apply to

the water in these perimeter ditches.

3. In passing the question along to Rhodes, Thompson also cast it in his

own words:

If the permittee designs the project with a perimeter

ditch system 100 feet away from the edge of the

percolation/evaporation pond wetted area, will the

discharge from the ditch system have to meet WQBEL

or Grizzle-Figg limits if applicable?

According to Chapter 17-610.517(2) and 17-610.522,

the collection and discharge of more than 50 percent

of the applied reclaimed water shall be considered

as an effluent disposal system. The question is

whether the 100 feet buffer will allow the descrip-

tion of the perimeter ditch water to be ground water

or a co-mingled ground/reclaimed water.

4. Rhodes reviewed the question and answered by memorandum dated September

15, 1989, which stated in salient part:

Based on this review, discharges from perimeter

ditch systems of percolation ponds must meet surface

water quality requirements of advanced treatment,

water quality based effluent limitations, or Grizzle-

Figg limitations where applicable. Attached are

comments which explain why these surface water quality

requirements must be met.

* * *

COMMENTS

1. Depending on site-specific parameters

such as the infiltration rate, existing ground

water table, subsurface flow, percolation pond

depth, and ditch depth, the content of the water

in the ditch may be either ground water or a

mixture of ground water and reclaimed water.

Because these parameters are site-specific, the

content of water in the ditch is site-specific.

However, knowledge of whether the water in the

ditch is ground water or a mixture of ground water

and reclaimed water is not important in determining

the effluent limitations of the discharge from the

ditch.

2. . . . Because construction of perimeter

ditches is associated with the operation of

percolation ponds, the ditch should be considered

part of the wastewater treatment facility and any

discharge from the ditch must meet the applicable

requirements of Rule 17-6, F. A. C., or Chapter 403,

F.S.

Also, because perimeter ditches are constructed around

percolation ponds to improve performance, the ditches

are located near the percolation ponds and some

reclaimed water is normally drained to and collected

in the ditch. Rule 17-610.517(2), F.A.C., specifically

states discharge from perimeter drainage features that

collect reclaimed water after land application are

restricted by surface water quality considerations

of additional treatment or the WQBEL provisions of

Rule 17-6, F.A.C. . . .

3. It was argued that because the zone of

discharge is 100-feet from the percolation pond and

the ditch is also 100-feet from the percolation pond,

the water in the perimeter ditch system is ground

water. However, zone of discharge as defined by

Rule 17-6.0321(33), F.A.C., does not mean that all

water located outside the zone of discharge is ground

water. Zone of discharge is more appropriately

interpreted as a "mixing zone" for ground water.

Waters inside the zone do not have to meet water

quality standards. If waters outside the zone do

not meet water quality standards, the permit is

violated.

4. The following question also was raised:

Why do the effluent limitations of Chapter 403.086,

F.S., apply for the discharge of a perimeter ditch

constructed 100-feet from a percolation pond when

they do not apply for the discharge from a percola-

tion pond constructed 100-feet away from wetlands?

The answer to this question is:

The discharge from the ditch is a surface water

discharge whereas the discharge from the percolation

pond is a ground water discharge. In the case of

ground water discharges, ground water quality

standards must be met outside the zone of discharge.

5. . . . It seems that [the second sentence

of F.A.C. Rule 17-610.517(2)] was interpreted to

mean; if more than 50 percent of the applied

reclaimed water is collected in the ditch, the

water is considered effluent and if 50 percent

or less of the applied reclaimed water is collected,

the water is considered ground water. This is not

the intent of this rule. The intent is; if more

than 50 percent of the applied reclaimed water is

collected in the ditch, the applied reclaimed water

is considered an effluent disposal system and if 50

percent or less of the applied reclaimed water is

collected, the applied reclaimed water may be

considered a reuse system. Therefore, this section

of rule is not applicable to the Lake Padgett

effluent disposal question.

6. The permittee requested Specific

Condition 15 be deleted from the permit. In some

cases, this may be done. However, if it is deleted,

a condition should be added to the permit that the

discharge from the ditch meet surface water quality

requirements of advanced treatment, WQBELS, or

Grizzle-Figg limitations, where applicable . . .,

[and] the permittee should also be required to

provide reasonable assurance that the required

discharge limitations can be met.

5. On March 15, 1990, another Department employee, named Jim Bottone,

prepared a two-page memorandum generally discussing the increasing use of

perimeter ditches conjunction with rapid-rate land application systems. The

memorandum concluded: "In summary, the use of perimeter ditches in conjunction

with rapid-rate systems appears to be a 'force fit' of technology in order to

save money on disposal. These systems appear to circumvent the intent of the

Department's reuse initiative." The discussion included a statement: "Rule 17-

610.517(2) states that the discharge from a perimeter ditch shall be restricted

by surface water quality considerations."

6. On December 13, 1990, the Department's Reuse Coordinator, David W.

York, Ph.D., P.E., sent Richard Harvey, Deputy Director of the Department's

Division of Water Facilities, a memorandum on the subject of perimeter ditches

and rapid-rate land application systems. It referred to the Rhodes and Bottone

memos, stating that the Rhodes memo "clearly addresses the applicability of

surface water quality considerations for this type of system." It also stated:

If perimeter ditches are used in association with

land application projects, and if the ditches

receive flows containing a portion of the applied

reclaimed water, the ditches are subject to surface

water quality constraints. Surface water quality

constraints may include technology-based effluent

limits, water quality-based effluent limits, or

Grizzle-Figg limitations, as appropriate.

7. F.A.C. Rule Chapter 17-610 pertains to "Reuse of Reclaimed Water and

Land Application." F.A.C. Rule 17-610.517 is entitled "Surface Runoff Control."

Paragraph (1) of the rule requires that the land application site be designed to

prevent the entrance of surface runoff, if necessary by placement of berms

around the application area for this purpose. Paragraph (2) of the rule

provides:

Discharge from perimeter drainage features that

collect reclaimed water after land application,

shall be restricted by surface water quality

considerations pursuant to additional treatment

or WQBEL provisions of Rules 17-600.420(2) and

17-600.430, F.A.C., respectively. Rapid-rate

land application systems that result in the

collection and discharge of more than 50 percent

of the applied reclaimed water shall be considered

as effluent disposal systems.

Rules 17-600.420(2) and 17-600.430 establish additional levels of wastewater

treatment for facilities that discharge to surface waters.

8. The Department is in the process of amending part (2) of Rule 17-

610.517(2) by separating the sentences, making the second sentence a new part

(3) of the rule, and explaining that the new part (3) would be used solely to

classify projects as "reuse" or "disposal" and would in no way affect the

requirements of part (2) of the rule. This amendment explicitly would codify in

the rule the explanation in the Rhodes memo that the second sentence of current

Rule 17-610.517(2) addresses the classification of disposal systems and, to that

end, establishes as a benchmark the "collection and discharge [in the ditches]

of more than 50 percent of the applied reclaimed water."

9. F.A.C. Rule 17-610.522, entitled "Subsurface Drainage," provides:

Subsurface drain systems, where necessary, shall

be designed in accordance with appropriate portions

of Rule 17-610.300(4)(f), F.A.C., concerning Soil

Conservation Service criteria for subsurface drains.

The drainage system shall be designed so that the

seasonal high water table is drawn down to a minimum

of 36 inches below pond bottoms during resting

periods. Pollutant content (including fecal coliforms)

of the reclaimed water collected by the underdrains

may be further restricted by surface water quality

considerations pursuant to additional treatment or

WQBEL provisions of Rules 17-600.420(2) or 17-600.430,

F.A.C., respectively. Rapid-rate land application

systems that result in the collection and discharge

of more than 50 percent of the applied reclaimed

water shall be considered as effluent disposal systems.

10. The Department also is in the process of amending Rule 17-610.522 by

separating the sentences, making the last sentence a new part (2) of the rule,

and explaining that the new part (2) would be used solely to classify projects

as "reuse" or "disposal" and would in no way affect the requirements of part (1)

of the rule.

11. The 50 percent figure in F.A.C. Rules 17-610.517(2) and 17-610.522 was

chosen based on deliberations by the 1988-89 Reuse Technical Advisory Committee

(RTAC). The RTAC offers technical expertise and advice to the Department as

revisions to Chapter 17-610 are drafted. A criterion was needed for

categorization purposes, and it was determined that 50 percent represented a

reasonable break point. The members of the RTAC represent the national leaders

in reuse of reclaimed water.

12. F.A.C. Rule 17-610.521(2) establishes a minimum 500-foot setback

distance between the wetted areas of a reuse land application site and Class I

and II surface waters of the state, reduced to 100 feet if high-level

disinfection is provided. F.A.C. Rule 17-610.521(5) provides that setback

distances to other classes of surface waters "shall be sufficient to provide

reasonable assurance of compliance with applicable water quality standards."

F.A.C. Rule 17-610.521(8) provides:

The minimum setbacks . . . shall only be used if,

based on review of the soils and hydrogeology of

the area, the proposed hydraulic loading rate,

quality of the reclaimed water, expected travel

time of the ground water to the potable water

supply wells and surface waters, and similar

considerations, there is reasonable assurance

that applicable water quality standards will not

be violated.

13. There is a valid reason for not establishing the same minimum setback

distances between the wetted edge of percolation ponds and perimeter drainage

features that collect reclaimed water after land application. Unlike reclaimed

water that disperses and diffuses in the ground before a part of it reaches a

water body solely through the ground, even though reclaimed water may travel

through the ground for 100 feet before reaching perimeter drainage features,

those features then collect and concentrate the resulting mixture of reclaimed

water and groundwater for discharge into the surface water, typically at a

limited number of discharge points and at higher volumes and flow rates.

14. At some point as it migrates through the ground and mixes with other

ground water, reclaimed becomes indistinguishable from naturally occurring

ground water. It is, of course, difficult to pinpoint precisely how far from

the wetted edge of a percolation pond this occurs.

CONCLUSIONS OF LAW

Counts I and II

15. The County asserts that the various County memoranda referred to in

the Findings of Fact constitute an unpromulgated rule.

16. The statutory definition in Section 120.52(16), Fla. Stat. (1993),

provides in pertinent part:

"Rule" means each agency statement of general

applicability that implements, interprets, or

prescribes law or policy or describes the

organization, procedure, or practice requirements

of an agency and includes any form which imposes

any requirement or solicits any information not

specifically required by statute or by an existing

rule.

17. Section 120.535(1), Fla. Stat. (1993), provides in pertinent part:

Each agency statement defined as a rule under s.

120.52(16) shall be adopted by the rulemaking

procedure provided by s. 120.54 as soon as feasible

and practicable.

18. To the extent that the essence of the various Department memoranda

constitute a rule, the rule also is recited in F.A.C. Rule 17-610.517(2). Count

I has no merit, and Count II is moot.

Count III

19. The statutory definition in Section 120.52(8), Fla. Stat. (1993),

provides in pertinent part:

"Invalid exercise of delegated legislative

authority" means action which goes beyond the

powers, functions, and duties delegated by the

Legislature. A proposed or existing rule is an

invalid exercise of delegated legislative authority

if any one or more of the following apply:

* * *

(c) The rule enlarges, modifies, or contravenes

the specific provisions of law implemented, citation

to which is required by s. 120.54(7);

(d) The rule is vague, fails to establish adequate

standards for agency decisions, or vests unbridled

discretion in the agency; or

(e) The rule is arbitrary or capricious.

20. Agencies have wide discretion in exercising lawful rulemaking

authority. Florida Comm'n on Human Relations v. Human Dev. Center, 413 So. 2d

1251 (Fla. 1st DCA 1982). In a rule challenge, the burden is on the petitioner

to prove the invalidity of the rule. Under Section 120.52(8)(e), the burden is

on the petitioner to "show . . . that the proposed rule or the requirements

thereof are arbitrary or capricious." Agrico Chem. Co. v. Dept. of

Environmental Reg., 365 So. 2d 759, 763 (Fla. 1st DCA 1978), cert. den., 376 So.

2d 74 (Fla. 1979). "A capricious action is one which is taken without thought

or reason or irrationally. An arbitrary decision is one not supported by facts

or logic, or despotic." Id.

A.

21. One County argument under Section 120.52(8)(e) that merits discussion

essentially is that it is arbitrary and capricious for F.A.C. Rule 17-610.517(2)

to restrict surface water discharges from perimeter drainage features that

collect reclaimed water after land application "by surface water quality

considerations pursuant to additional treatment or WQBEL provisions of Rules 17-

600.420(2) and 17-600.430, F.A.C., respectively," when F.A.C. Rule 17-610.521

gives similar groundwater discharges the benefit of an initial presumption,

through the minimum required setback distances, of reasonable assurances that

applicable water quality standards will not be violated.

22. First, it should be repeated and emphasized that F.A.C. Rule 17-

610.521 only confers an initial presumption, through the minimum required 100-

foot setback distance, that there are reasonable assurances that applicable

water quality standards will not be violated. Under F.A.C. Rule 17-610.521(8):

The minimum setbacks . . . shall only be used

if, based on review of the soils and hydrogeology

of the area, the proposed hydraulic loading rate,

quality of the reclaimed water, expected travel

time of the ground water to the potable water

supply wells and surface waters, and similar

considerations, there is reasonable assurance

that applicable water quality standards will

not be violated.

23. Second, as found, there is a valid reason for not conferring the same

benefit on perimeter drainage features that collect reclaimed water after land

application. See Finding of Fact 13, above.

B.

24. At times, the County seems to be arguing essentially that, by

definition under F.A.C. Rule 17-610.200(18), reclaimed water applied to a

percolation pond becomes "ground water" as soon as it enters the zone of

saturation, below the land surface, where water is at or above atmospheric

pressure. The argument continues that any reclaimed water migrating into

perimeter drainage ditch features already has become "ground water" by

definition and that it is arbitrary and capricious, or vague at best, to

continue to treat it as "reclaimed water" for purposes of F.A.C. Rules 17-

610.517(2) and 17-610.522. The argument continues that, since it has become

"ground water" by definition, the reclaimed water no longer is regulated.

25. Taking the County's definitional argument to its logical conclusion,

neither F.A.C. Rule 17-610.517(2), nor F.A.C. Rule 17-610.522, nor any other

environmental regulation would apply to practically any reclaimed water applied

to a percolation pond since it would become "ground water," and no longer

"reclaimed water," as soon as it enters the zone of saturation, below the land

surface, where water is at or above atmospheric pressure. Such an absurd result

cannot be countenanced.

26. At some point as it migrates through the ground and mixes with other

ground water, reclaimed becomes indistinguishable from naturally occurring

ground water. It is, of course, difficult to pinpoint precisely how far from

the wetted edge of a percolation pond this occurs. As a result, difficult to

pinpoint precisely when reclaimed water applied to a percolation pond no longer

should be considered reclaimed water for purposes of F.A.C. Rules 17-610.517(2)

and 17-610.522. But the difficulty pinpointing these occurrences does not make

F.A.C. Rules 17-610.517(2) and 17-610.522 so vague as to vest unbridled

discretion in the Department, as described in Section 120.52(8)(d), Fla. Stat.

(1993).

C.

27. The County also seems to argue that discharges outside of the "zone of

discharge" are essentially unregulated. F.A.C. Rules 17-3.021(21) and 17-

520.200(23) define "zone of discharge" as being that "volume underlying or

surrounding the site and extending to the base of a specifically designated

aquifer or aquifers, within which an opportunity for the treatment, mixture or

dispersion of wastes into receiving ground water is afforded." (The source of

the citation in the Rhodes memo to a F.A.C. Rule 17-6.0321(33) is not clear.)

But the rule does not say that discharges beyond the "zone of discharge" are

essentially unregulated. The closest thing to such a rule is F.A.C. Rule 17-

610.521, which already has been discussed.

28. "Zone of discharge" is, of course, inherent in the concept of

permitting reuse or effluent disposal systems. Whenever this occurs, a certain

amount of "pollution" is being permitted under strict controls and monitoring.

There is a "zone of discharge" in which this "pollution" is being allowed to

occur. The limits of the "zone of discharge" are determined in the permitting

process. At the edge of the "zone of discharge," ground water must meet the

applicable ground water standards, and surface waters must meet the applicable

surface water standards. There is nothing in these basic environmental

permitting concepts that invalidates either F.A.C. Rule 17-610.517(2) or F.A.C.

Rule 17-610.522.

D.

29. Another argument made by the County is that the rules in question

create evidentiary presumptions--namely, that "any water contained in an on-site

ditch adjacent to a percolation pond is deemed to be 'reclaimed water' or

'effluent,' regardless of the actual origin or quality of that water." It is

true that agencies cannot create evidentiary presumptions. See McDonald v.

Dept. of Prof. Reg., Bd. of Pilot Comm'n'rs, 582 So. 2d 660 (Fla. 1st DCA 1991);

B.R. v. Dept. of Health, etc., 558 So. 2d 1027, 1029 (Fla. 2d DCA 1990). But is

concluded that the rules in question do not create evidentiary presumptions.

30. The County's argument is based in large part on the definitions of

"ground water," "reclaimed water," and "effluent" in F.A.C. Rule 17-610.200.

The argument is essentially that the rules in question create "presumptions"

about when water is "ground water," when it is "reclaimed water," and when it is

"effluent." Even assuming that the rules in question made those kinds of

"presumptions," they in fact would be doing nothing more than defining terms for

purposes of the Department's regulatory scheme. Defining terms in agency rules

does not constitute the prohibited creation of evidentiary presumptions.

E.

31. Finally, the County contends that the 50 percent standard contained in

the last sentences of F.A.C. Rules 17-610.517(2) and 17-610.522 is arbitrary and

capricious. But those parts of the rules are for classification purposes only;

they are used only to determined whether a project should be classified as a

reuse project. The agency is not prohibited from defining a rapid-rate

infiltration project, whose purpose is supposed to be the recharge of the

receiving aquifer, as an effluent disposal project, and not a reuse project, if

more than 50 percent of the treated effluent applied to the site is collected in

perimeter drainage features and direct off the site as surface flow, instead of

remaining part of the ground water. The classifications are neither arbitrary

nor capricious.

DISPOSITION

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

County's rule challenges are dismissed.

DONE AND ORDERED this 31st day of October, 1994, in Tallahassee, Florida.

___________________________________

J. LAWRENCE JOHNSTON

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 31st day of October, 1994.

APPENDIX TO FINAL ORDER, CASE NO. 94-0001RX

To comply with the requirements of Section 120.59(2), Fla. Stat. (1993),

the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

1.-10. Mostly rejected as being conclusions of law or as being

unnecessary.

11. See 1.-10., above. Also, argument. Finally, incorrect. It would be

more accurate and complete to call reclaimed water that percolates down and out

from the pond reclaimed water that exists within the ground water as defined by

F.A.C. Rule 17-610.200(18).

12.-27. Accepted but subordinate and unnecessary.

28.-29. Accepted and incorporated to the extent not subordinate or

unnecessary.

30.-31. Accepted but subordinate and unnecessary.

32.-35. Accepted and incorporated.

36. Rejected in that the same benefit would be conferred as to ground

water flow, but not as to reclaimed water that is collected in the ditches,

concentrated, and discharged into surface waters.

37. Accepted; subordinate to facts found.

38.-39. Rejected as not proven.

40.-45. Accepted and incorporated to the extent not subordinate or

unnecessary.

46. Rejected as not proven that "the Department would automatically

approve" or "automatically deny." The ruling could have "set a precedent" in

the sense of enforcing F.A.C. Rules 17-610.517(2) and 17-610.522, if it was not

being enforced, or in the sense of declining to enforce, if that had been the

"ruling."

47. Accepted and incorporated.

48. Last sentence, rejected as conclusion of law or argument, and as being

incorrect. See 11., above.

49. Accepted and incorporated to the extent not subordinate or

unnecessary.

50. Rejected as not proven that the Bottone memo "identifies the

Department position, etc." Otherwise, accepted and incorporated.

51. Accepted and incorporated.

52. Rejected as not proven that York did not intend to limit the term

"reclaimed water" to the rule definition. Otherwise, accepted but largely

subordinate and unnecessary. Incorporated to the extent not subordinate or

unnecessary.

53. Rejected as not proven that to be the purpose.

54. Rejected as not proven. See 52., above.

55.-60. Conclusion of law and unnecessary.

61.-62. Rejected as not proven.

63. Accepted but unnecessary.

64. Rejected as not proven.

65. Accepted but unnecessary.

66.-70. Accepted but irrelevant and unnecessary. (F.A.C. Rule 17-

610.521(2) is in place.)

71.-78. Rejected as conclusion of law, as argument, and as incorrect.

79. Second and third sentences, accepted but subordinate and unnecessary.

The rest is rejected as conclusion of law, as argument, and as incorrect.

80. The second sentence is accepted to the extent that there is no

"scientific" basis for defining the framework of a regulatory scheme, but

subordinate and unnecessary. The rest is, rejected as not proven. (For

purposes of deciding between two classifications--reuse and effluent disposal--

50 percent is the best and most appropriate demarcation.)

81. Rejected as conclusion of law, as argument and as incorrect.

82. Penultimate sentence, accepted but subordinate and unnecessary; the

rest is rejected as not proven. See 80., above.

83. First sentence, rejected as not proven. Second sentence, accepted but

subordinate and unnecessary.

Respondent's Proposed Findings of Fact.

1.-2. Accepted but subordinate and unnecessary.

3.-6. Accepted and incorporated.

7.-9. Accepted but subordinate and unnecessary.

10. Accepted and incorporated.

11.-13. Accepted but largely subordinate and unnecessary.

14. Accepted and incorporated to the extent not subordinate or

unnecessary.

15. Accepted and incorporated.

16. Conclusion of law; unnecessary.

17. Accepted and incorporated to the extent not subordinate or

unnecessary.

18. Cumulative.

19.-21. Accepted and incorporated.

22.-24. Accepted and incorporated to the extent not subordinate or

unnecessary.

COPIES FURNISHED:

Edward P. de la Parte, Jr., Esquire

David M. Caldevilla, Esquire

de la Parte, Gilbert & Bales, P.A.

P.O. Box 2350

Tampa, Florida 33601-2350

Jennifer L. Mason, Esquire

Douglas H. MacLaughlin, Esquire

Assistant General Counsel

Department of Environmental Protection

2600 Blairstone Road

Tallahassee, Florida 32399-2400

Virginia B. Wetherell, Secretary

Department of Environmental Protection

Twin Towers Office Building

2600 Blair Stone Road

Tallahassee, Florida 32399-2400

Kenneth Plante, Esquire

General Counsel

Department of Environmental Protection

2600 Blair Stone Road

Tallahassee, Florida 32399-2400

Carroll Webb, Executive Director

Administrative Procedures Committee

120 Holland Building

Tallahassee, Florida 32399-1300

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL

REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE

GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE

COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE

DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING

FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR

WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY

RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE

ORDER TO BE REVIEWED.