Title: State of Florida Division of Administrative Hearings - Alliance for Rational Ground Water Rules and ADAM SMITH ENTERPRISES, INC. vs. DEPT. OF ENVIRONMENTAL REGULATION, etc.
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 Material Information
Title: State of Florida Division of Administrative Hearings - Alliance for Rational Ground Water Rules and ADAM SMITH ENTERPRISES, INC. vs. DEPT. OF ENVIRONMENTAL REGULATION, etc.
Physical Description: Book
Language: English
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Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Jake Varn Collection - State of Florida Division of Administrative Hearings - Alliance for Rational Ground Water Rules and ADAM SMITH ENTERPRISES, INC. vs. DEPT. OF ENVIRONMENTAL REGULATION, etc. (JDV Box 89)
General Note: Box 19, Folder 10 ( Dept. of Regulation - Groundwater Discharge Permitting - 1990 ), Item 4
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00004304
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text
I,-


STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS


ALLIANCE FOR RATIONAL GROUND
WATER RULES and ADAM SMITH
ENTERPRISES, INC.,

Petitioner,

vs.

DEPARTMENT OF ENVIRONMENTAL
REGULATION,

Respondent,

and

FLORIDA ELECTRIC POWER
COORDINATING GROUP, INC. and )
WEST COAST REGIONAL WATER
SUPPLY AUTHORITY,

Intervenors. )


ALOHA UTILITIES, INC., et al., )

Petitioner,

vs.

DEPARTMENT OF ENVIRONMENTAL
REGULATION AND ENVIRONMENTAL
REGULATION COMMISSION, )
)
Respondent,

and

FLORIDA ELECTRIC POWER
COORDINATING GROUP, INC., WEST
COAST REGIONAL WATER SUPPLY
AUTHORITY, FLORIDA LAND COUNCIL
and CONCERNED CITIZENS OF
CITRUS COUNTY, INC., )

Intervenors. )
______________________)


CASE NO. 86-4492R



















CASE NO. 86-4705R


FINAL ORDER

Pursuant to notice, the Division of Administrative

Hearings, by its duly designated Hearing Officer, William J.

Kendrick, held a public hearing in the above-styled consolidated

cases on April 27-May 1, 1987, and August 10-19, 1987, in

Tallahassee, Florida.


tdr et itioner, Adam
sBiut iterpHsh, In6.:


APPEARANCES

phris H. ,Bentley; Esquire
obSE; SUNbsTgbA & BNiiTLk
2544 Bl6irstone Pinbs Dbive


10 FALR 2419 FALR


CITE as







10 FALR 2420


For Petitioner, Alliance
for Rational Groundwater
Rules:




For Petitioners, Aloha
Utilities, Inc.; Interphase
Inc.; Phase 1 Homes, Inc.;
A.C. & R., Inc.; Tahitian
Development, Inc.; Great
Cypress Mobile Village,
Inc.; and Barrington, Ltd.:

For Respondent, Department
of Environmental Regulation
and Environmental Regulation
Commission:



For Intervenor, Florida
Electric Power
Coordinating Group, Inc.:




For Intervenor, Florida
Land Council, Inc.:


For Intervenor, Pasco
County:




For Intervenor, West
Coast Regional Water
Supply Authority:




For Intervenor, Concerned
Citizens of Citrus
County, Inc.:


Tallahassee, Florida 32301

Seth T. Craine, Esquire
STEARNS, WEAVER, MILLER
WEISSLER, ALHADEFF & SITTERSON,P.A.
One Tampa City Center, Suite 300
Post Office Box 3299
Tampa, Florida 33601

Martin S. Friedman, Esquire
ROSE, SUNDSTROM & BENTLEY
2544 Blairstone Pines Drive
Tallahassee, Florida 32301




Cynthia K. Christen, Esquire
Assistant General Counsel
Department-of Environmental
Regulation
2600 Blair Stone Road
Tallahassee, Florida 32399-2400

William D. Preston, Esquire
William H. Green, Esquire
Anne Claussen, Esquire
HOPPING, BOYD, GREEN, & SAMS
420 First Florida Bank Building
Post Office Box 6526
Tallahassee, Florida 32314

Charles G. Stephens, Esquire
202 Madison Street
Tampa, Florida 33602

Edward B. Halvenston, Esquire
Assistant County Attorney
Pasco County Government Center
7530 Little Road
New Port Richey, Florida 33553

Edward M. Chew, Esquire
Douglas M. Wyckoff, Esquire
de la Parte, Gilbert & Gramovot,
P.A.
705 E. Kennedy Blvd.
Tampa, Florida 33602

Thomas W. Reese, Esquire
123 Eighth Street North
St. Petersburg, Florida 33701


PRELIMINARY STATEMENT

This is a rule challenge brought under the provisions

of Section 120.54(4), Florida Statutes.

The issues for determination are whether the Department

of Environmental Regulation's proposed rules 17-3.021, 17-3.403,

17-3.404, and 17-4.245, Florida Administrative Code, constitute

an invalid.exercise of delegated legislative authority.

At hearing Petitioner, Adam Smith Enterprises, Inc.

(Adam Smith), presented the testimony of 12 witnesses, and its


F/LLR


CITE as


C






CITE as 10 FALR 2421 AFLR


exhibits 1-9, 11-15, 17-24, 26, 32-53 were received into

evidence. Testifying on behalf of Adam Smith were David Skinner;

Elizabeth Field; Donnie R. McClaugherty; Charles C. Aller; John

Vecchioli; Howard L. Rhodes; Rodney DeHan; Philip E. LaMoreaux;

accepted as an expert in hydrogeology; Basher A. Memon, accepted

as an expert in hydrogeology and applied mathematics; Dale H.

Twachtmann; Richard Klusza, accepted as an expert in real estate

appraisal; and, Kenneth W. Watson. Petitioner, Alliance for

Rational Groundwater Rules, called David Skinner as a witness,

and its exhibit 1 was received into evidence.
Petitioners, Aloha Utilities, Inc., Interphase, Inc.,

Phase 1 Homes, Inc., A.C.& R., Inc., Tahitian Development, Inc.,

Great Cypress Mobile Village, Inc., and Barrington, Ltd., called

as witnesses: Fredrick W. Bell, accepted as an expert in resource

and environmental economics, and the preparation of economic

impact statements; and, Steven G. Watford. No exhibits were

offered on behalf of these petitioners.
The Department of Environmental Regulation (Department)

presented the testimony of 5 witnesses, and its exhibits 1, 2A,

2B, and 3-11 were received into evidence. Testifying on behalf
of the Department were Elizabeth Field, accepted as an expert in

economics; Rodney DeHan, accepted as an expert in microbiology

and biochemistry; Charles C. Aller; John Vecchioli; and Mark T.

Stewart, accepted as an expert in geology, hydrogeology, water

resource management, and applied mathematics in geology and

hydrogeology.
Intervenors, Florida Electric Power Coordinating Group,

Inc., Florida Land Council, and Pasco County, were aligned with

petitioners. -Florida Electric Power Coordinating Group, Inc.,

presented the testimony of Robert Guyer and J. I. Garcia-

Bengochea, who was accepted as an expert in groundwater

resources, and its exhibits 1-3 were received into evidence.

Florida Land Council called Charles B. Littlejohn, and its


testimony' 8a Oi1iam a. M'in i and R8oss +: Acdiiiiva; 'wih8 was






F ILR CITE as 10 FALR 2422 2


accepted as an expert in geotechnical engineering including the

measurement and evaluation of the hydrologic properties of soil

and rock, and its exhibits 1-3 were received into evidence.

Intervenors, West Coast Regional Water Supply Authority
(West Coast) and Concerned Citizens of Citrus County, Inc.

(Concerned Citizens), were aligned with the Department. West
Coast presented the testimony of 2 witnesses, and its exhibits 1,
la, 2-8, 10 and 11 were received into evidence. Testifying on

behalf of West Coast were Scott H. Emery and Kenneth W. Watson,
who was accepted as an expert in groundwater hydrology, modeling
of groundwater hydrology, soil physics, and applied mathematics.
Concerned Citizens presented the testimony of Miriam Cohen, but

* offered no exhibits.

The final volumes of the transcript of hearing were
filed September 17, 1987. The parties were granted leave until

November 23, 1987, to serve proposed findings of fact, and waived

the requirement that the final order be filed within thirty days

of the date the transcript is filed. The parties' proposed

findings of fact have been addressed in the appendix to this
final order.

FINDINGS OF FACT
Background
1. In 1983, Concerned Citizens of Citrus County, Inc.

(Concerned Citizens), an intervenor in this case, filed a

petition to'- initiate rulemaking for single source

reclassification of groundwater under the existing provisions of
Rule 17-3.403, Florida Administrative Code (F.A.C.). In this

manner, Concerned Citizens sought to have existent potable waters
in Pinellas, Hillsborough, Pasco, Hernando, and Citrus Counties
classified Class G-I groundwater, and to thereby provide them the
most stringent water quality protection accorded groundwaters of

the state.

2. At a public meeting in February 1985, the
Environmental Regulation Commission (ERC) deferred action on the
petition of Concerned Citizens, and directed the Department of






CITE as 10 FALR 2423 I3 LR


Environmental Regulation (Department) to review the existing G-I

rule, prepare proposed revisions, and present its recommendations

to the ERC.
3. Following the ERC directive, the Department held

numerous public meetings and workshops to explore different

approaches to groundwater protection. As a consequence, it

prepared the proposed revisions to Rules 17-3.021, 17-3.403, 17-

3.404, and 17-4.245, F.A.C., at issue in these proceedings.

4. On October 31, 1986, the Department duly noticed

the proposed rules in volume 12, number 44, of the Florida

Administrative eeckly. The notico-also advised all int=erctcd

parties that a public hearing would be held on December 16, 1986,

before the ERC.1

5. On December 16-17, 1986, the ERC held a public

hearing at which time it considered the rules recommended by the

Department. During the course of this meeting, the ERC approved

and adopted the rules with certain changes. These changes were

duly noticed in volume 13, number 3, of the Florida

Administrative Weekly on January 16, 1987.

Petitioners and Intervenors

6. Petitioners, Adam Smith Enterprises, Inc., and

Alliance for Rational Groundwater Rules (Case No. 86-4492R), and

Petitioners Aloha Utilities, Inc.; Interphase, Inc.; Phase 1

Homes, Inc.; A.C. & R., Inc.; Tahitian Development, Inc.; Great

Cypress Mobile Village, Inc.; and Barrington, Ltd. (Case No. 86-

4705R), filed timely petitions to challenge the validity of the

proposed rules, which petitions were consolidated for hearing.

Petitions for leave to intervene were granted on behalf of

Florida Electric Power Coordinating Group, Inc.; Florida Land

Council, Inc.; ,.id Pasco County. These intervenors' interests

1 Prior to the meeting of December 16, 1986, the ERC had
not considered'the proposed rules as a collegial body. The
Department, consistent with the practice which existed between it
and the ERC, noticed the proposed rules and developed the ERC's
agqbdd without priot approval of thb EtC. The aqnhd Wa,
h6w fjve@ aVied with the chairman bf the ERC Pri6t ta it
Matiilng and the ruis weeiir casiidted ana apP-G ed by the ERt at
a duii Rticda aid feguidiay called meetig;:







FILR CITE as 10 FALR 2424


were aligned with those of petitioners. Petitions for leave to

intervene were also granted on behalf of West Coast-Regional

Water Supply Authority and Concerned Citizens of Citrus County,

Inc. These intervenors' interests were aligned with those of the

Department and the ERC.
7. Petitioner, Adam Smith Enterprises, Inc. (Adam.

Smith), is thi owner/developer of a 3,800-acre development of

regional impact (DRI) to be known as Trinity Communities. This
development, which has been in the acquisition and planning

stages for almost 5 years, is currently undergoing DRI review and

Adam Smith anticipates that it will receive its development order

by September 1987.
8. The Trinity Communities development is located

predominately in Pasco County, with just over 250 acres of its

lands located in Pinellas County. These properties are
<
predominately open pasture land, and are bordered on the north,

east and west by roads and on the south by Hillsborough and

Pinellas Counties.
9. As proposed, the Trinity Communities development

will include 1100 acres of parks, golf courses, and other open

areas. The remaining lands will be developed to accommodate 9500

dwelling units, as well as industrial and commercial uses eo

service the community, over a 20-year period. At today's market

value, the property represents an investment of approximately 28

million dollars.

10. Abutting the Trinity Communities development is the

Eldridge-Wilde Well Field. This well field is covered by

consumptive use permits issued by the Southwest Florida Water

Management District (SWFWMD), and contains major public community

drinking water supply wells as defined by the rules at issue in

this proceeding. Of these wells, 5 are located within 9.63 feet
and 181.5 feet of the proposed development's property line, and 5
are located with 204.72 fee and 297.5 feet of its property line.
11. Petitioner, Alliance for Rational Groundwater Rules

(Alliance), is an association of landowners who united to educate






CITE as 10 FALR 2425 I/ LR


themselves about the proposed rules. The proof failed, however,

to establish whether Alliance had ever elected any officers or

directors, or the magnitude of its membership. Consequently, the

proof failed to establish that a substantial number of its

members, although not necessarily a majority, were substantially

affected by the proposed rules, and that the relief requested by

it was of a type appropriate for it to receive on behalf of its

members.

12. Petitioner, Aloha Utilities, Inc. (Aloha

Utilities), is a utility certified by the Florida Public Service

Commission to provide water and sewer service to two separate

service areas in southern Pasco County. Currently, Aloha

Utilities operates an 850,000 gallon per day (gpd) sewage

treatment facility (Aloha Gardens) and a 1.2 million gpd sewage

treatment plant (Seven Springs). It also operates 10-11

producing wells, at least 7 of which are permitted by SWFWMD to

withdraw at least 100,000 gpd. One of these wells is located

approximately 1/4-1/2 mile from an Aloha Utility sewage treatment

plant.

13. At least 3 of Aloha Utilities' wells which are

permitted to withdraw 100,000 gpd or more, will service or are

servicing the Riverside projects and Aloha Gardens Unit Number 12

project discussed infra. Consequently, the proof establishes

that Aloha Utilities operates a major public community drinking

water supply system as defined by the subject rules.

14. The Aloha Gardens facility is under a Department

order to expand its effluent disposal capacity. To satisfy the

Department's order and the need for'increased disposal capacity,

Aloha Utilities commenced condemnation proceedings 8-12 months

ago to secure the needed property. While the condemnation

proceeding is not yet completed, Aloha Utilities has already

expended considerable sums for engineering studies and attorney's

fees in its efforts to acquire the property. That property is

located approximately 1/2 mile from an existing well that is

permitted far an average daily ftlw of at least 16iOo1O gd.,






F LR CITE as 10 FALR 2426


15. The effluent disposal capacity of the Seven Springs
facility is also being expanded to meet existing and future
demand. In April 1987, Aloha Utilities acquired a 27-28 acre

parcel of land immediately adjacent to its existing facility.

Upon these lands, Aloha Utilities proposes to construct
percolation ponds, a rapid rate land application effluent

disposal process. As sited, these ponds would be located 1/2 to

3/4 of a mile from a well permitted for an average daily flow of
100,000 gallons or more.

16. Petitioners, Interphase, Inc., Phase 1 Homes, Inc.,

and Tahitian Development, Inc., are corporations with common
management which are developing three separate but geographically

proximate projects in Pasco County. These projects will be, or
are, serviced by Aloha Utilities.
17. Interphase, Inc., is the owner/developer of a 100-
acre tract known as Riverside Village Unit Number Four. This

property is currently being developed to include 57 acres

dedicated to single family use and 43 acres dedicated to
multifamily use, and will require the installation of stormwater

facilities and underground sewage transportation facilities. Two
wells of Aloha Utilities that are permitted for an average daily
flow of 100,000 gallons or more are located 1/2 mile and 1/3

mile, respectively, from this development.
Interphase, Inc., is also the owner of a 17-acre parcel

of. vacant land in Pasco County that is zoned commercial. This

property is located within 400 feet of Aloha Utilities' Seven

Springs sewer treatment plant, and its development will require
the installation of underground sewage transportation facilities.
18. Phase 1 Homes, Inc., is the owner/developer of a

project known as Riverside Village Townhouses. This project is

fully developed and is currently serviced by Aloha Utilities.
Located within 1/2 mile of the development are two wells of Aloha

2 Aloha Utilities has in the past filed a timely renewal
of an operating permit, had the Department request additional
information, and had its new operating permit issued after the
former one expired.






CITE as 10 FALR 2427 FALR


Utilities that are permitted for an average daily flow of 100,000

gallons or more.

19. Tahitian Development, Inc., is the owner/developer

of a 40-acre-fract known as Riverside Villas. Twenty of these

acres have been developed and some of the units sold. The

remaining 20 acres are currently under development.

In developing its remaining 20 acres, Tahitian

Development would be required to install stormwater drainage

systems and sewage transportation lines to connect with Aloha

Utilities. Located within 1/2 mile of the development are wells

of Aloha Utilities that are permitted for an average daily flcw

of 100,000 gallons or more.
Tahitian Development also owns a 40-acre parcel in

Orange County which it plans to develop for light industrial uses

such as an industrial park or an office complex. Such

development would result in at least a 40% impervious surface,

including building tops, within that 40-acre parcel, and require

the installation of a sewage transportation system and a

stormwater drainage system.

20. Petitioner, A.C.& R., Inc., is the owner/developer

of a project in Pasco County known as Aloha Gardens Unit Number

12. The project, which currently is represented by 40-50

developed lots, is located just north of the Aloha Gardens sewage

treatment facility, and is serviced by Aloha Utilities. Located

within 1/2 mile of the development is a awll of Alcha Utilities

that is permitted for an average daily flow of 100,000 gallons or

more.
21. Petitioner, Great Cypress Mobile Village, Inc., is

the owner/developer of a 149 unit mobile home park in Pasco

County. Twenty of these units are completed and ready for

occupancy. Completion of the project will require the

installation of additional sewer lines. Located at the interior

of the property is a sewage treatment plant owned by Northern

Utilities which services the project, and within 600 feet of the

project's boundary there is a well which services that utility.





FEILR CITE as 10 FALR 2428


The capacity of that well was not, however, demonstrated in these

proceedings, nor was it shown whether such well was part of a

community water system.

22. Petitioner, Barrington, Ltd. is a party of unknown

capacity, origin, or interest. No evidence was presented on its
behalf to demonstrate that its substantial interests would be

affected by the proposed rules.

23. Intervenor, Florida Electric Power Coordinating

Group, Inc. (FCG), a Florida corporation, is an association of

Florida's electric utilities, and is composed of 37 members. The

FCG has, as part of its internal organization, an environmental

committee whose purpose is to participate in regulatory

development and provide mutual member assistance with regard to

water related matters. This committee was authorized by the FCG

executive committee to participate in the development of the

rules at issue in these proceedings, as well as intervene in

these proceedings, to represent and protect the interests of FCG

members. The FCG participated in the development of the subject

rules by the Department, and was granted full party status by the

ERC during that rulemaking process.

24.'The members of FCG are owners and operators of

electric power generating facilities. These facilities include

the power plant and ancillary facilities such as substations.

Incident to the operation of these facilities are wastewater

discharges associated with the production of electricity and

stormwater discharges. One of these facilities, Gainesville

Regional Utilities' Deer Haven generating station is located

across Highway 441 from a major community drinking water supply

well.

25. Intervenor, Florida Land Council, Inc., a Florida

corporation, is composed of 12 primary members who own large

tracts of land in interior Florida, and who are engaged primarily

in agribusiness. The Land Council's purpose is to protect the

asset value of its members property and, because of that purpose,

it is concerned with environmental regulations, growth management






CITE as 10 FALR 2429 F/ILR


regulations, land use regulations, and comprehensive planning.

To protect its interests, the Land Council sought leave to

intervene in these proceedings. There was, however, no proof

that any lands owned by any member of the Land Council were

proximate to any major public community drinking water well.

26. Intervenor, Pasco County, is the owner/operator of

25 wastewater treatment plants with- capacities in cxccss of

100,000 gallons per day, and has under construction, or in the

design stage, additional facilities with capacities in excess of

100,000 gallons per day. The construction of these new

facilities will require the installation of new lines for the

collection of wastewater. Pasco County's current, as well as its

planned, wastewater treatment facilities will utilize a rapid

rate land application effluent disposal process. Within a mile

of any wastewater treatment plan operated by Pasco County can be

found a major public community drinking water well as defined by

the rules at issue in these proceedings.

27. Pasco County also owns and operates wells within

the county with permitted withdrawal rates exceeding 100,000 gpd,

and participates in the ownership and management of other wells

with permitted withdrawal rates exceeding 100,000 gpd through

West Coast Regional Water Supply Authority. Pasco County

currently has plans to add new production wells in the county

with an average daily pumpage in excess of 100,000 gallons per

day.

28. Intervenor, West Coast Regional Water Supply

Authority (West Coast), is an interlocal government body created

in 1974 to develop, store, and supply water to its member

governments so that all citizens within the areas served by the

authority may be assured an adequate supply of water. Member

governments served by WCRWSA are Hillsborough County, Pasco

County, Pinellas County, and the cities df St. Petersburg and

Tampa.

29. Wellfields operated by West Coast are the Starkey

Wellfield located in west central Pasco County, which serves the






FILR CITE as 10 FALR 2430


citizens of New Port Richey and Pasco County; the South-Central

Hillsborough Regional Wellfield located in south-central

Hillsborough- county, which serves the citizens of Hillsborough

County; the Crossbar Ranch Wellfield located in north-central

Pasco County, which principally serves the citizens of Pinellas

County; the Cypress Creek Wellfield located in south-central

Pasco County, which serves the citizens of Hillsborough,

Pinellas, and western Pasco Counties and the City of St.

Petersburg; the Northwest Hillsborough Wellfield located in

northwest Hillsborough County, which serves the citizens of

Hillsborough County; the Section 21 Wellfield located in

northwest Hillsborough County, which serves the citizens of the

City of St. Petersburg; and, the Come-Odessa Wellfield located in

northwest Hillsborough County, which serves the citizens of the

City of St. Petersburg.3

30. Each of the wellfields operated by West Coast are

public community water systems, and contain wells permitted to

withdraw in excess of 100,000 gallons per day. Collectively,

these wellfields serve a total population of 800,000 persons.

31. Intervenor, Concerned Citizens of Citrus County,

Inc. (Concerned Citizens), is a not-for-profit corporation, was

chartered in 1981, and has 350 members who obtain their drinking

water from operational community water supply wells permitted for

over 100,000 gallons per day in Inverness, Crystal River, Floral

City, Sugar Mill Woods, Beverly Hills, and Rolling Oaks, Citrus

County, Florida. The purpose of Concerned Citizens is to protect

the natural resources of Citrus County through planning and

zoning regulations, and local and state legislation and

regulations. It was granted party status by the ERC.

General aspects of the proposed rules



3 West Coast owns and operates the Starkey Wellfield, the
South-Central Hillsborough Regional Wellfield, the Crossbar Ranch
Wellfield, the'Cypress Creek Wellfield, and the Northwest
Hillsborough Wellfield. The remaining wellfields are operated by
West Coast under an operations and management agreement with the
respective member governments.


~






CITE as 10 FALR 2431 IFALR

32. The proposed rules establish new eligibility

criteria for designation of an aquifer segment as Class G-I

groundwater. Under the existing rule, the ERC could reclassify

an aquifer or portion of an aquifer as G-I within specified

boundaries upon a finding that:
1. The aquifer or portion of the aquifer is
the only reasonably available source of
potable water to a significant segment of
the population; and

2. The designated use is attainable, upon
consideration of environmental,
technological, water quality, institutional,
and social and economic factors.

Under the proposed revisions, an aquifer segment could be

classified by the ERC as G-I provided it was:
...within the zones of protection of a major
public community drinking water supply
well(s) or wellfield(s) withdrawing water
from unconfined aquifers or from leaky
confined aquifers....

and, upon consideration of:

...environmental, technological, water
quality, institutional (including local land
use comprehensive plans), public health,
public interest, social.and economic
factors.

As with the -existing rule, the proposed rules require that

rulemaking procedures be followed to actually designate a G-I

aquifer or aquifer segment at any particular location.

33. The scheme envisioned by the proposed rules is to

provide protection to "major community drinking water supply

wells", community water systems that are permitted by consumptive

use permit to withdraw an average daily amount of 100,000 gallons

or greater of groundwater, by preventing contaminants from

entering the groundwater within a circumscribed radius of the

wells. To accomplish this purpose, the proposed rules establish

a methodology whereby two zones of protection would be

established around such wells if they were withdrawing waters

from unconfined aquifers (an aquifer exposed to the atmosphere)

or leaky confined aquifers (an aquifer in which groundwater moves

vertically from the water table to the top of the aquifer in five

years or less). The first zone (the inner zone) would be based





F ILR CITE as 10 FALR 2432


on a fixed radius of 200 feet. The second zone (the outer zone)

would be based on a radius, calculated under the rule's

methodology, of 5 years groundwater travel time. Within the

inner zone, discharges would be prohibited. Within the outer

zone, certain developments which discharge to groundwater would

be prohibited or restricted.

34. A major emphasis of the proposed rules is to
restrict discharges to groundwater within the zones of

protection. For example, the rules eliminate the zone of

discharge within the zones of protection, and require that new
discharges to groundwater of treated domestic effluent meet the

groundwater criteria specified in rule 17-3.404, F.A.C., prior to

discharge.4 Additionally, such wastewater treatment facilities

would be required to pretreat industrial wastewater, provide

daily monitoring to insure proper treatment plant process

control, and provide 24 hour a day attendance of a wastewater

operator under the general supervision of a Class A certified
wastewater operator. New underground lines for the transport of

domestic raw wastewater would be required to be constructed so

that no more than 50 gallons per inch of pipe diameter per mile

per day could leak into the ground.

35. Within the 5 year zone of protection, there are no
restrictions on stormwater discharges for residential

developments. However, discharges from new stormwater facilities

serving an area forty acres or larger with a forty percent

impervious surface, excluding building tops, are required .to

monitor the discharge. Construction and operation of new

sanitary landfills would be prohibited.

36. As previously noted, to be eligible for
reclassification as a G-I aquifer, the aquifer or aquifer segment

under consideration must be leaky confined or unconfined.



Under the existing rule, zones of discharge may be
permitted.' Essentially this permitted a discharger to utilize
groundwaters within a certain area to mix with its discharge and
thereby meet the Department's water quality criteria. Under the
proposed rules, such zones will not be permitted.






CITE as 10 FALR 2433 FI1LR


Whether the aquifer is leaky confined or not will be determined

through application of the "Vv" and "Tv" formulae contained in

the proposed rules, ard the zones of protection will be

established by reference to the "r" formula contained in the

proposed rule.

37. To date, neither the Department nor any party has

applied the "Vv" and "Tv" formulae to identify wells that are

withdrawing from unconfined or leaky confined aquifers, nor has

anyone delineated any zones of protection by application of the

"r" formula. The Department has, however, identified those areas

of the state at which it is likely that major community drinking

water supply wells are withdrawing from such aquifers. Based on

this identification, the Department has contracted with the U.S.

Geological Survey (USGS) to "map" the Middle-Gulf region

(Pinellas, Hillsborough, Pasco, Hernando, and Citrus Counties) by

applying the "Vv" and "TV" formulas to each well permitted to

withdraw 100,000 gpd or more to determine if it is withdrawing

from such aquifers and, if so, to delineate proposed zones of

protection around such wells or wellfields through application of

the "r" formula. The USGS is currently mapping the Middle-Gulf

region.

38. Pertinent to this case, the Department has

identified all of Pasco and Pinellas Counties, the northern half

of Hillsborough County, and most of Orange County including

Orlando, as areas within which wells are most probably

withdrawing from unconfined or leaky confined aquifers, and for

which aquifers' the Department will seek G-I reclassification.

Under the circumstances, the parties have established, except as

heretofore noted, that there is a reasonable likelihood that the

proposed rules will substantially affect their interests.

The rule challenge
39. The gravamen of the protestant's challenge is that

certain definitions and formulae continued within the proposed

rule are vague, ambiguous, or not supported by fact or logic.

The Protestants' also challenge the adequacy of the economic






F ILR CITE as 10 FALR 2434


impact statement. The Protestants concerns are addressed below.
Definitions

40. Rule 17-3.021, as amended, would define "Confined

Aquifer", "Leaky Confined Aquifer", and "Unconfined Aquifer", as
follows:

(7) "Confined Aquifer" shall mean an
aquifer bounded above and below'by
impermeable beds or by beds of distinctly
lower permeability than that of the aquifer
itself. For the purpose of G-I, it shall
mean an aquifer confined from above by a
formation(s) which restricts the movement
of groundwater vertically from the water
table to the top of the confined aquifer
for a period of more than five years.


(16) "Leaky Confined Aquifer" shall mean,
for the purposes of G-I. an aquifer
confined from above by a formation(s) which
allows groundwater tLomove verLiually flum
the water table to the top of the leaky
confined aquifer in five years or less.


(34) "Unconfined Aquifer" shall mean an
aquifer other than a confined aquifer. For
the purpose of G-I it shall mean an aquifer
other than a confined or leaky confined
aquifer.

41. Protestants contend that the definition of

"confined aquifer" and "leaky confined aquifer" are vague and

meaningless because they are "defined by use of the phrase being

defined". Accordingly, they conclude that proposed rule 17-

3.021(7) and (16) must fall because they are without thought and

reason, irrational and vague. Protestants further contend that

since the definitions of "confined aquifer" and "leaky confined

aquifer" are flawed, proposed rule 17-3.021(34), which defines

unconfined aquifer, must also fall. The Protestants' contentions

are not persuasive.

42. If one were restricted to the definition of

"confined", "leaky confined" and "unconfined" aquifer to glean
their meaning, the rules might be considered vague. However,


5The underlined portion of rules 17-3.021(7), (16), and
(34) represents the amendment or proposed rule at issue. The
part not underlined represents the existing rule.






CITE as 10 FALR 2435 FIALR

these definitions are, as they specifically provide, "for the

purpose of G-I" and they must be read in context with the balance

of the rule. When so read, it is apparent that "top of the

confined aquifer" or "top of the leaky confined aquifer" is the

top of the aquifer that has been calculated as confined or leaky

through manipulation of the "Vv" and "Tv" formulae. Under the

circumstances, the subject definitions are not vague, arbitrary

or capricious.

43. Proposed rule 17-3.021(20) provides:

"New Discharge" shall mean, for the purpose
of G-I, a discharge from a new
"Installation; or a discharge from an
existing permitted installation that has
been altered, after the effective date of
G-I reclassification, either chemically,
biologically, or physically or that has a
different point of discharge, and which
causes a significantly different impact on
groundwater.

44. Protestants contend that the definition of "new

discharge" is vague, arbitrary and capricious because existing

installations would be classified as new dischargers, and subject

to the more stringent requirements of the proposed rules, whether

the alteration of their discharge significantly improved or

adversely affected groundwater. As proposed, the rule would so

define new discharge, and it is not vague or ambiguous. The

proof demonstrated, however, that the Department only proposed to

define, as new dischargers, those existing installations whose

altered discharge caused a significantly different negative

impact on groundwater. The Department conceded this point, and

offered no proof to demonstrate the reasonableness of classifying

existing installations that improve their discharge as new

discharges. Under the circumstances, proposed rule 17-3.021(20)

is arbitrary and capricious.

45. Proposed rule 17-3.021(35) defines "underground

storage facility" or "underground transportation facility" as

follows:
"Underground storage facility" or
"underground transportation facility" shall
mean that 10% or more of the facility is
buried below the ground surface.






F ILR CITE as 10 FALR 2436


This proposed rule is, however, only pertinent to proposed rule

17-4.245, which addresses the permitting and monitoring

requirements for installations discharging to groundwater.

Pertinent to this case, proposed rules 17-4.245(3)(c) and (d)

establish construction requirements for the following facilities

within the five year zone of protection:

(c) Underground storage facilities. An
underground storage facility includes any
enclosed structure, container, tank or
other enclosed stationary devices used for
storage or containment of pollutants as
defined in Section 376.301(12), F.S. or any
contaminant as defined in Section
403.031(1), F.S. Nothing in this paragraph
is intended to include septic tanks,
enclosed transformers or other similarly
enclosed underground facilities....

(d) Underground facilities for
transportation of wastewater or pollutants
as defined in Section 376.301(12), F.S. or
any contaminant as defined in Section
403.031(1), F.S. excluding natural and
liquified petroleum gas. Underground
facilities for transportation of waste
effluent or pollutants or contaminants
include piping, sewer lines, and ducts or
other conveyances to transport pollutants
as defined in Section 376.301(12), P.S.,
and contaminants as defined in Section
403.031(1), F.S.....

46. Protestants contend that the proposed rules are
contained in two separate chapters of the Florida Administrative

Code with no bridge between them. Under such circumstances, they

contend the rules fail to adequately define either facility in

either chapter, and that the rules are therefore vague, arbitrary

and capricious. Protestants' contention is not persuasive.

47. Proposed rule 17-3.021(35) defines "underground
storage facility" or "underground transportation facility" as

meaning that 10% or more of the facility is buried'below the

ground surface. Proposed rules 17-4.245(3)(c) and (d) address

what type of facility is included within the terms "underground

storage facility" and "underground transportation facility."
Notably, Rule 17-4.021, F.A.C., provides:

Definitions contained in other chapters of
the Department's rules may be utilized to
clarify the meaning of terms used herein
unless such terms are defined in Section
17-4.020, F.A.C., or transfer of such






CITE as 10 FALR 2437 I11LR


definition would defeat the purpose or
alter the intended effect of the
provisions of this chapter.
Under the circumstances of this case, the rules are appropriately

read together. So read, the construction requirements for

"underground storage facilities" and "underground transportation

facilities", as required by proposed rule 17-4.245(3)(c) and (d),

are applicable if 10% or more of the containment device used for

the storage or transport of pollutants is buried below the ground

surface, and the proposed rules are not vague, arbitrary or

capricious.

48. Proposed rule 17-3.021(39) defines "Zones of

Protection" as follows:

"Zones of Protection" shall mean two
concentric areas around a major public
community drinking water supply well(s) or
wellfield(s) drawing from a G-I aquifer
whose boundaries are determined based on
radii from the well or wellfields of 200
feet and five years groundwater travel
time respectively.

49. Protestants contend that the definition of "Zones

of Protection" is vague, arbitrary and capricious because nowhere

within the proposed rules is "G-I aquifer" defined. Protestants'

contention is not persuasive. Proposed rules 17-3.403(1) and (7)

adequately explain what is meant by "G-I aquifer", and proposed

rule 17-3.403(8) sets forth the metodology for calculating the

zones of protection. The definition of "Zones of Protection",

set forth in proposed rule 17-3.02(39) is not vague, arbitrary or

capricious, because of any failure to define "G-I aquifer."

Mapping Priorities

50. When considering whether to reclassify an aquifer

or aquifer segment as G-I, proposed rule 17-3.403(5)(e)2 requires

that the aquifer or aquifer segment:

Be specifically mapped and delineated by
the Department on a detailed map of a scale
which would clearly depict the applicable
zones of protection. Maps will be grouped
and submitted for reclassification
generally on a regional basis.

a. Mapping priorities shall follow the
Commission directive of February 27, 1985.






FALR CITE as 10 FALR 2438



b. The remaining areas of the state will
be mapped by the Department as time and
resources allow.

51. The mapping priority directive referred to in

purposed Rule 17-3.403(5)(e)2a, was an oral directive of the ERC

that Pinellas, Hillsborough, Pasco; Hernando, and Citrus

Counties, referred to as the Middle-Gulf region, be mapped first.

That directive has not been reduced to writing and, consequently.

a copy thereof has never been available for inspection.

Categories of G-I Aquifers and
determination of zones and protection

52. Proposed rules 17-3.403(7) and (8), respectively,.
set forth the eligibility criteria for reclassification as G-I

aquifers and the methodology whereby the boundaries of the zones

of protection are established. To this end, propr--4 rule 17-

3.403(7) provides:

Categories of G-I aquifers. For aquifers
or aquifer segments to be eligible for
potential reclassification as G-I aquifers
one of the following criteria must be met:

(a) That the aquifer or aquifer segment
under consideration be within the zones of
protection of a major public community
drinking water supply well(s) or
wellfield(s) withdrawing water from
unconfined aquifers or from leaky confined
aquifers....

(b) (...reserved.)
Proposed rule 17-3.403(8) provides:

Determination of the boundaries of the
zones of protection.

(a) The boundaries of the zones of
protection shall be based on radii from the
wellhead or wellfield (if closely
clustered, so that the five year zones of
protection are overlapping) measured in 200
feet for the inner zone and five years for
the outer zone. The radius of the outer
zone shall be determined using the
following formula:


C3.14 hn
where Q permitted average daily flow from
the well (measured in cubic feet per day);
T five years (1825 days); 3.14 -
mathematical constant pi; r radius
(feet); h distance from the top of the
producing aquifer to the bottom of the hole
(feet); n effective porosity.


~-------~----~-







1;iij


CITE as


10 FALR 2439


F/1LR


53. Protestants contend that the foregoing provisions
of the proposed rules are vague, arbitrary and capricious because
the wells that would be subject to and around which a zone of
protection would be established cannot be identified or, if
identifiable, do not comport with the Department's intent or
interpretation. Protestant's concerns are not without merit.
54. To be eligible for consideration as a G-I aquifer,
proposed rule 17-3.403(7) requires that the aquifer segment be
within the zones of protection of a "major public community
drinking water supply well(s) or wellfield(s)". Proposed rule
17-3.021(17) provides that "major public community drinking water
supply" shall mean:
... those community water systems as
defined in Section 17-22.103(5), F.A.C.,
that are permitted by consumptive use
permit to withdraw an average daily amount
of 100,000 gallons or greater of
groundwater.
"Community water system" is defined by Section 17-22.103(5) as:
... a public water system which serves at
least 15 service connections used by year-
round residents or regularly serves at
least 25 year-round residents.
55. Facially then, the proposed G-I rules are
applicable to "community water systems" that hold a "consumptive
use permit to withdraw an average daily amount of 100,000 gallons
or greater of groundwater", and which are withdrawing from
unconfined or leaky confined aquifers. Notably, the rule does
not ascribe the 100,000 gpd permitted rate of withdrawal to each
well, but to" a permit held by a community water system.
Accordingly, under the literal reading of the proposed rules,
each well covered by the consumptive use permit would be subject

to a zone of protection regardless of its individually permitted
rate, so long as it was withdrawing from an unconfined or leaky
confined aquifer.
56. While there may be legitimate reasons to designate
zones of protection around wells, regardless of their individual
permitted rate when the community water system holds a
consumptive use permit to withdraw groundwater at a 100,000 gpd






F1LR CITE as 10 FALR 2440 4


average, the Department advanced none. To the contrary, the

Department contended that zones of protection were only to be

established around a well that was permitted to withdraw an

average daily amount of 100,000 gallons or greater. Under the

circumstances, the provisions of proposed rules 17-3.403(7) and

(8) are arbitrary and capricious.6

The "Vv" and "Tv" formulae

57. Proposed rule 17-3.403(7)(a) prescribes the

methodology where by vertical travel time will be calculated, and
therefore whether a particular aquifer will be classified as

confined or leaky confined. To this end, the proposed rule

provides:
... Determination of vertical travel time
for leaky confinement will be by
application of the following formulae:

Vv Kv h/nl
where:
Vv vertical velocity (feet/day).
Kv vertical hydraulic conductivities
of the surficial aquifer and
underlying confining bed materials
(feet/day).
Ah head difference between water
table in the surficial aquifer and
the potentiometric surface of the
producing aquifer (feet).
n effective porosities of the
surficial aquifer and underlying
confining bed materials.
S1 distance from the water table to
the top of the producing aquifer
(feet).
Tv 1/Vv 365
where:
Tv vertical travel time (years).
1 same as above.
Vv same as above.

58. The "Vv" formula and the "Tv" formula are valid

formulae, and are commonly used by hydrogeologists to calculate

the vertical velocity and vertical travel time of groundwater.

As proposed, the formulae present a reasonable methodology for

SProtestants also contended that proposed rule 17-
3.403(7) was vague, arbitrary, and capricious because of the
requirement in the criteria that the subject wells be
"withdrawing water" from the aquifer. Protestants phrase their
quandary as "how often and for how long must a well be
withdrawing water" to satisfy the rule criteria. The criteria is
not, however, vague, and the proof demonstrates a reasonable
basis for its indeterminate terminology. The frequency of
withdrawal or actual quantity of withdrawal at any give time is
not germane since the permitted rate may be achieved at anytime.







c -~


10 FALR 2441


IFALR


computing the vertical velocity and vertical travel time of

groundwater if the well .is producing from one aquifer. The

formulae cannot, however, as hereafter discussed, be reasonably

applied if the well is producing from multiple aquifers or if

another aquifer intervenes between the surficial aquifer and the

producing aquifer. While not the most prevalent occurrence in

the state wells in the Middle-Gulf regions often do.penetrate

more than one aquifer and do produce water from more than one

aquifer.
59. The rule defines the "Kv" element of the "Vv"

formula as the "vertical hydraulic conductivities of the

surficial aquifer and underlying confining bed materials

(feet/day)." This is a reasonable definition and will produce a

scientifically valid result provided the well does not penetrate

multiple aquifers. Should the well penetrate multiple aquifers,

the values derived for vertical velocity ("Vv") and vertical

travel time ("Tv") will not be accurate since the hydraulic

conductivities of the intervening aquifers are not, by the rule

definition, factored into the calculation of "Kv". Under such

circumstances, whether an aquifer was classified as confined or

leaky confined would not be determined by a valid "Kv" but,

rather, by chance.

60. Protestants also contend that the rule is vague,

arbitrary and capricious because it does not specify the

methodology by which "Kv" is to be calculated. There are,

however, methodologies commonly accepted by hydrogeologists to

derive a scientifically valid "Kv", whether the well penetrates

one or more than one aquifer. The infirmity of the rule is not

its failure to specify a methodology, but its failure to include

data necessary to produce a meaningful result.
61. The rule defines the "n" element of the Vv formula

as "effective porosities of the surficial aquifer and underlying

confining bed materials." This is a reasonable definition and
will, though the application of commonly accepted methodologies,


c


CITE as






FILR CITE as 10 FALR 2442


produce a scientifically valid result.7

62. The rule defines the element "Delta h" in the Vv
formula as the "head difference between the water table in the

surficial aquifer and the potentiometric surface of the producing

aquifer (feet)", and defines the element "1" as the "distance

from the water table to the top of the producing aquifer (feet)."

These elements are utilized in the formula to calculate a

gradient, and must be measured using the same points of reference

to yield a meaningful result. To this end, the proof demonstrates

that the definitions are reasonable since they utilize the same

points of reference, and that when applied in accordance with

accepted hydrogeologic practice will produce a scientifically

valid gradient. (See Department exhibit 7).

63. Protestants contend, however, that the definitions

of "Delta h" and "l" are vague, arbitrary and capricious because

they do not specify when the measurements should be made, do not

define "producing aquifer", and do not define "top" of the

producing aquifer. For the reasons that follow, Protestants'

contentions are found to be without merit.

64. While a water table is a dynamic surface subject to

frequent, if not daily fluctuation, resulting from variations in
rainfall and the demands of man, and while a potentiometric

surface is likewise a dynamic elevation that changes with time

and season, protestants failed to demonstrate that there was any

particular date or dates that would be most appropriate to make

such calculations. Rather, protestants contended that unless

such measurements were taken contemporaneously, any derivation of

"Delta h" and "1" would not be reliable. While such might be the

7 Protestants contended that the proposed rule was vague,
arbitrary and capricious for the Department's failure to specify
a value for "n" or a methodology. The rule is reasonable in not
specifying a value for "n" since the effective porosity of
materials vary, vary with mix, and vary from place to place.
While hydrogeology may be an inexact science, and while
hydrogeologist may reach different conclusions as to the porosity
of various materials, there are accepted methodologies to derive
"n". The result derived may only be as good as the data used and
the hydogeologist who performed the analysis, but the validity of
the result is a question of fact, and subject to scientific
nroof.





CITE as 10 FALR 2443 FALR

case, the rule does not mandate a divergence from the accepted

hydrogeologic practice of taking such measurements

contemporaneously.

65. While the rule does not define "producing aquifer,"

it is an accepted hydrogeologic term and not subject to

confusion. .The only confusion in this case was the introduction

of the issue of multiple producing aquifers and protestants'

contentions that this rendered the Vv formula vague, arbitrary

and capricious since it did not factor in such a consideration.

Protestants' contention does not, however renude Li e Lerm

"producing aquifer" vague.

66. The sole purpose of the Vv and Tv formulas are to

determine whether the aquifer from which water is being produced

is leaky confined. To establish this, the formulae are applied

to calculate whether the vertical travel time is five years or

less. If a well is withdrawing water from more than one aquifer

it may be necessary to calculate Vv and Tv for each aquifer to

discern which of those aquifers are within the 5 year vertical

travel time threshold, and therefore subject to G-I

reclassification. To this end the rule is not vague, and would

adequately address the multiple producing aquifer scenario.

67. While the rule doe not define "top" of the

producing aquifer, this term is an accepted hydrogeologic term

and is not subject to confusion. In application there may,

however, be disagreements among hydrogeologists as to where this

line should be established because geologic boundaries are fine

gradations, and not sharp lines which would lend themselves to

the designation of precise points of reference. This is not,

however, a failure of the rule, but a peculiarity of nature, and

is subject to scientific proof. Notably, protestants did not

demonstrate that "top" of the producing aquifer could be defined

with reference to a fixed point. Under the circumstances, "top"

of the producing aquifer is a reasonable reference point.

Zones of Protection






ILLR CITE as 10 FALR 2444


68. Proposed rule 17-3.408 provides:

Determination of the boundaries of the
zones of protection shall be based on radii
from the wellhead or wellfield (if closely
clustered, so that the five year zones of
protection are overlapping), measured in
200 feet for the inner zone and five years
for the outer zone. The radius of the
outer zone shall be determined using the
following formula:

3.14 hn

where Q permitted average daily flow from
the well (measured in cubic feet per day);
T five years (1825 days); 3.14 -
mathematical constant pi; r radius
(feet); h distance from the top of the
producing aquifer to the bottom of the hole
(feet); n effective porosity. For the
purpose of this calculation the following
effective porosities for representative
Florida aquifers will be used:
Floridan .05 Sand and Gravel .2
Biscayne .15 Surficial .2
The Department shall use more site-specific
values for "Q", "n", or "h" when available
for designation of the zones of protection
by the Commission.

69. Proposed rule 17-3.403(8)(a) provides that the

inner zone of protection shall be based on a radius from the

wellhead or wellfilled, as appropriate, of 200 feet. While

denoted as an arbitrary radius, the 200 foot radius was not

derived without fact or reason. Rather, it was a result reached

at the workshops after consideration of existing regulations that

establish buffer zones of 200-500 feet between a public water

supply and a pollution source. Conceptually, the 200 foot zone

was.adopted because it is so small and so close to the well that

it essentially constituted a zone of protection of the well head

by preventing contaminants from moving into the well opening

directly or the annular space around the well casing.

Accordingly, the 200 foot zone has a reasonable basis. Its

actual delineation is, however, as flawed as that of the five

year zone discussed infra.

70. The "r" formula defines the outer zone of
protection, and calculates it as a radius equal to the distance

groundwater would flow in five years toward the well. The basis








5~IL


IlLR


10 FALR 2445


for the "r" formula is the formula used to calculate the volume
of a cylinder. That formula, V = pi r2 h, yields a simple
volumetric measurement without any consideration of velocity. By

the introduction of the element "n" (effective porosity), the "r"

formula introduces a velocity component which would, properly

applied, produce a radius equal to the distance groundwater would

flow in 5 years.8 As proposed, however, the rule would

establish a meaningless line around a well.
71. Under the proposed rule, the Department would

calculate "r" based on specified effective porosities ("n") for

the Floridan, Biscayne, sand and gravel, and surficial aquifers

absent site specific data. The Department is, however, under no

requirement to generate site specific data, and currently is

mapping the Middle-Gulf region based on the values established by

the rule. Absent chance, the areas mapped will bear no

relationship to groundwater travel time.
72. The lithology of an aquifer and the surrounding

layers is varied and diverse, and directly affects the direction

and velocity of groundwater flow. Dy assuming a constant "n",

the "r" formula ignores the varied lithology, and produces a

radius that would seldom, if ever, represent the actual rate at

which groundwater moved toward any well. The zone thus

circumscribed is an illusion since the groundwaters and

contaminants within it may move at a rate significantly greater

than or less than 5 years travel time. Notably, the Department

has conducted no study or test to validate its proposed

methodology.



Porosity is the percent of.open or void space within a
material. This porosity is generally referred to as bulk
porosity, and may include primary porosity (the intergranular
spaces) and secondary porosity (factures or cavities that have
developed through movement of the earth's crest or through
dissolution). When calculating volume, the bulk porosity is the
factor of impart. When calculating transport time, one is
concerned with the effective porosity (the ease with which a
solute is transported) and the porosity of foremost concern is
secondary porosity.
9
The formula also ignores recharge. Therefore, "r" is
artificially increased.


CITE as






FALR CITE as 10 FALR 2446


73. The element "Q" in the "r" formula is defined as

the "permitted average daily flow from the well (measured in

cubic feet per day)." Protestants contend that such definition

is vague, arbitrary and capricious because the Department

proposes to rely on consumptive use permits issued by the various

water management districts to derive "Q", and such permits would

not necessarily provide the requisite data.

74. While the proof demonstrates that "Q" cannot always

be derived by reference to a consumptive use permit, this does

not render the definition of "Q" vague, arbitrary, or capricious.

Rather, "Q" is a factual matter, and subject to a factual

derivation through reference to consumptive use permits and other

site specific data.
75. The element "T" in the "r" formula is defined as

"five years (1825) days." By its inclusion, the Department

proposes to circumscribe the outer zone of protection at five

years groundwater travel time.

76. The concept of a zone of protection is premised on

the theory that restrictions should be placed on discharges to

groundwater within an area proximate to a public water supply for

public health and safety concerns. The five year standard, which

is found throughout the rules, was based on the theory that if a

contaminant was introduced to groundwater a period of time should

be allowed to discover the contamination and remove it or make

provision for an alternate water supply before the contaminant

reached the public water supply. The five years proposed by the

rule was not, however, founded on fact or reason.

77. During the workshops that under scored the proposed

rule, the time factor was the subject-of considerable discussion

and ranged from less than two years to greater than ten years.

Based on its own in-house search, the Department initially

proposed a 10-year standard. That search revealed that it took

10 to 15 years between the time a contaminant was discovered and

cleanup could commence, and between-sevene aid euylht years between

the time a contaminant was introduced into groundwater and its






CITE as 10 FALR 2447 FI1LR

discovery.

78. Notwithstanding the results of its own in-house

search, the Department, in the face of debate, elected to

"compromise"-hnd propose a five-year standard. Such standard was

not the result of any study to assess its validity, and no data,

reports or other research were utilized to derive it. In sum,

the five-year standard was simply a "compromise", and was not

supported by fact or reason.
79. The element "h" in the "r" formula is defined as

the "distance from the top of the producing aquifer to the bottom

of the hole (feet)." "Bottom of the hole" is an accepted term

among hydrogeologists, and designates the depth to which the well

has been drilled.

80. The element "h" is a significant element in the "r"

formula. As "h" increases, the size of the zone of protection

decreases. Accordingly, to accord the protection contemplated by

the proposed rules to wells withdrawing from "leaky confined" and

"unconfined" aquifers, a valid "h" is essential. Under the rule

definition "h" does not, however, bear any relationship to the

aquifer for which protection may be sought. For example, a well

could be withdrawing from two aquifers, the uppermost designated

as leaky confined and the lower designed as confined. Under such

circumstances, the zone of protection accorded the leaky confined

aquifer would not accord the groundwater withdrawn from that well

a zone of protection equivalent to five years travel time. Under

the circumstances, the definition of "h" is not based on fact or

reason because it bears no relationship to the aquifer subject to

reclassification.

81. The element "n" in the "r" formula, is defined as

"effective pl6osity." The term "effective porosity" is an

accepted hydrogeologic term, and refers to the ease with which a

solute is transported through a material.

82. As previously noted, the lithology of an aquifer

and the surrounding layers is varied and diverse, and directly

affects the direction and velocity of groundwater flow. The






F/ILR CITE as 10 FALR 2448


effective porosity of those materials in the Floridan aquifer can

vary from .01 to .4 at various places. The rule proposes,

however, to use an effective porosity for the Floridan aquifer of

.05 to establish "r".

83. The value ascribed to "n" is a critical value, as
previously discussed in paragraph 65. It also has a profound

impact on the aeral extent of the zone of protection. For
example, assuming "Q" equals 3 million gallons and "h" equals 600

feet, an "n" of .02 would result in a radius of 4,406 feet or

li400 acres, an "n" of .03 would result in a radius of 3,578 feet

or 934 acres, an "n" of .05 would result in a radius of 2,787

feet or 560 acres, and an "n" of .2 would result in a radius of

1,393 feet or 140 acres.

84. While an effective porosity of .05 for the Floridan
aquifer may be a reasonable value at a particular site, it is not

a value -that can be reasonably ascribed to the Floridan in

general. For this reason, and the reasons heretofore set forth,

the rule's specification of an effective porosity of .05 for the

Floridan aquifer is unreasonable.

85. Proposed rule 17-3.403(8)(a), sets forth the manner
in which the"zones of protection will be drawn around a well or

wellfield. That proposed rule provides:

For wellfields whose individual zones of
protection overlap due to clustering, a
single zone of protection will be
calculated in the following manner:

Using the permitted average daily
withdrawal rate of the wells with
overlapping zones of protection, the area
on the surface overlying the aquifer equal
to the sum of the areas of the five year
zones of protection of the individual
wells, shall be used to define the area
which encircles the perimeter of the
wellfield. In cases where a zone of
protection of a single well protrudes
beyond the calculated perimeter or when the
configuration of the wellfield is
irregular, the perimeter will be shaped to
accommodate the configuration. The surface
area encircling the perimeter of the
wellfield shall not exceed tlhu total
surface area of the overlapping zones of
protection for individual wells.







r-


10 FALR 2449


FALR


In the case of unclustered wells within a
wellfield, individual zones of protection
around each well will be calculated.
86. As previously discussed, the proposed G-I rules are
facially applicable to "community water systems" that hold a
"consumptive use permit to withdraw an average daily amount of
100,000 gallons or greater of groundwater," and which are
withdrawing from unconfined or leaky confined aquifers. Under
proposed rule 1773.403(8)(a), the five-year zone of protection
would be drawn around each of these wells. If the wells are
located so close to each other that the five year zones of
protection are overlapping (clustered), those wells would be
deemed a wellfield by rule definition and a five year zone of
protection would be established around it.

87. The proposed rule's description at how to determine
and configure a zone of protection around a wellfield is,
however, vague and ambiguous. While the rule provides that when
the configuration of the wellfield is "irregular", the perimeter
will be shaped to "accommodate the configuration", it sets forth
no standard by which irregularity is to be determined and no
methodology by which the perimeter will be established.
Effectively, the rule vests unbridled discretion in the
Department to establish the configuration of a wellfield.
The Economic Impact Statements


88. Pursuant to the mandate of Section 120.54(2),
Florida Statutes, the Department prepared economic impact
statements for the proposed revisions to Chapters 17-3 and 17-4,
Florida Administrative Code.10 The economic impact statements

10 The economic impact statement for the proposed
revision of Chapter 17-3 and the economic impact statement for
the proposed revision of Chapter 17-A are substantially similar
since each is dependent upon the other for implementation of the
proposed G-I concept. Adam Smith's exhibits 5 and 6 are the
original economic impact statements, and were prepared for the
hearing on the rules noticed in the Octobar 31, 186, Florida
Adminpitrativ Weekly. After October.31,, 1986, but pripr to the
]RP,meeting in,pecember,1986, the Department prepared an.,,
paendment to theeconomic impact statement for the proposed -
revisionof Chapter 17-3.. (Adam Smith exhibit 7)., ,.This.,ameqdment
was preparedrto. address certain amendments torthenqticpdl i4les,
the Department, proposed, to submi, at the ERC,,meqiing,,.FopXlow4ng
the ERC meeting, the Department prepared a second amendment to


10 FALR 2 4 4 9


CITE as


-1






FILR CITE as 10 FALR 2450

were prepared by Dr. Elizabeth Field, the Department's chief

economist, an expert in economics.

89. Dr. Field developed the economic impact statements
by examining the proposed rules and discussing their potential

impact with Department staff. Additionally, Dr. Field attended

the public workshops that were held concerning the proposed

rules, and solicited input from those participants. The Florida

Home Builders Association and the Florida Petroleum Council

submitted data for her consideration, but none of the

petitioners, although some were represented at such workshops,

responded to her requests for information.

91. The economic impact statements prepared by Dr.
Field to address the proposed rules conclude that, apart from he

cost to the Department for mapping, there are no direct costs or

economic benefits occasioned by the rules. Dr. Field's

conclusion was premised on the fact that the proposed rules only

establish the eligibility criteria for reclassification of an

aquifer to G-I and the standards for discharge to that aquifer.

Under the proposed rules, further rulemaking would be required to

actually designate a specific aquifer as G-I, and delineate a

zone of protection.

92. Pertinent to this case, proposed rule 17-3.403,
provides:

(2) The intent of establishing G-I
eligibility criteria is to determine which
aquifer or aquifer segments qualify for
potential reclassification to G-I aquifers.
Adoption of these criteria does not imply
nor does it designate aquifer or aquifer
segments as G-I. Such designation can only
be achieved through reclassification by the
Commission after eligible segments have.
been mapped by the Department.






10 c.-t.
the economic impact statement for the proposed revisions of
Chapter 17-3 and an amendment of the economic impact statement
for the proposed revisions to Chapter 17-4. (Adam Smith exhibits
8 and 9). These amendments arose because of various amendments
to the proposed rules approved by the ERC at its December
meeting.






CITE as 10 FALR 2451 FAILR


(6)...the following procedure shall be used
to designate Class G-I aquifers:
(a) Rulemakinq procedures pursuant to
Chapter 17-102, F.A.C.. shall be followed;
(b) Fact-finding workshops shall be held
in the affected area;
(c) All local, county, or municipal
governments, water management districts,
state .-gislators, regional water supply
authorities, and regional planning councils
whose districts or jurisdictions include
all or part of a proposed G-I aquifer shall
be notified in writing by the Department at
least 60 days prior to the workshop;
(d) A prominent public notice shall be
placed in an appropriate newspapers) of
general circulation in the area of the
proposed G-I aquifer at least 60 days prior
to the workshop. The notice shall contain
a geographic location map indicating the
area of the zones of protection and a
general description of the impact of
reclassification on present and future
discharges to groundwater. A notice of a
G-I workshop shall be published in the
Florida Administrative Weekly prior to the
workshopss. At least 180 days prior to
the Commission meeting during which a
particular zone of protection will be
considered for reclassification, the
Department will provide notice in the
Florida Administrative Weekly and
appropriate newspapers) of the intended
date of the Commission meeting.
(e) The Commission may reclassify an
aquifer or aquifer segment as a G-I aquifer
within specified boundaries upon
consideration of environmental.
technological, water quality, institutional
(including local land use comprehensive
plans), public health, public interest,
social and economic factors. When
considering a reclassification an aquifer
or aquifer segment shall:

1. ....(Be within the zones of
protection of a major public community
drinking water supply well(s) or
wellfield(s) withdrawing water from
unconfined or from leaky confined
aquifers.)....
2. Be specifically mapped and
delineated by the Department on a detailed
map of a scale which would clearly depict
the applicable zones or protection. Maps
will be grouped and submitted for
reclassification generally on a regional
basis.
a. Mapping priorities shall follow
the Commission directive of February 27,
1985.
b. The remaining areas of the
state will be mapped by the Department as
time and resources allow. (Emphasis
added).






FIlLR CITE as 10 FALR 2452


93. While, if and when applied, the proposed rules
would certainly have a direct economic impact as a consequence of

a reclassification of an aquifer to G-I and the designation of a

zone of protection, as well as the standards for discharge to
that aquifer, such costs at this stage are not direct or are not

quantifiable. When mapped and the zones of protection

identified, a reasonable assessment of the economic cost or
benefit of the proposal can be addressed. This is specifically

reserved by the Commission whereby its decision to reclassify an

aquifer as G-I will, pursuant to proposed rule 17-3.403(6) follow

rule making procedures and be based on consideration of economic
factors. This result obtains whether the affected party is a
small business or some other entity.
94. In reaching the conclusion that the economic costs
or benefits of the proposed rules, apart from the cost of

mapping, do not at this stage have a direct or quantifiable
impact, I have not overlooked the "announcement effect" that is
occasioned by the announcement of a governmental agency to

regulate an activity. Such announcement certainly has a chilling
effect on the community that may reasonably be impacted. The

economic impact is, however, speculative or not quantifiable in
the instant case. Further, the proof does not demonstrate any

incorrectness or unfairness in the proposed adoption of the rules

occasioned by the EIS prepared in this case.
CONCLUSIONS OF LAW

1. The Division of Administrative Hearings has

jurisdiction over the parties to, and the subject matter of,

these proceedings. Section 120.54(4), Florida Statutes.
Standing

2. Section 120.54(4)(a), Florida Statutes, provides:
Any substantially affected person may
seek an administrative determination of the
invalidity of any proposed rule on the
ground that the proposed rule is an invalid
exercise of delegated legislative
authority.






CITE as 10 FALR 2453 FA/LR



3. To demonstrate that it is substantially affected by
a proposed rule, a party must establish that, as a consequence of

the proposed rule, it will suffer injury in fact, and that the

injury is one that is subject to protection in the proceeding by

virtue of a rule, statute or constitutional provision. Florida

Medical Association, Inc. v. Department of Professional

Regulation, 426 So.2d 1112 (Fla. 1st DCA 1983). Further, the

injury must not be speculative, nonspecific and hypothetical, and

lacking in immediacy and reality. Florida Department of Offender

Rehabilitation v. Jerry, 353 So.2d 1230 (Fla. 1st DCA 1978).

Finally, where the party is an association, it must show that (a)
a substantial number of its members, although not necessarily a
majority, are substantially affected by the rule, (b) the subject

matter of the rule is within the association's general scope of

interest and activity, and (c) the relief requested is of a type

appropriate for the association to receive on behalf of its
members. Florida Home Builders Association v. Department of

Labor and Employment Security, 412 So.2d 351 (Fla. 1982).

4. Applying the foregoing standards to the facts of
this case demonstrates that the following petitioners or

intervenors have demonstrated the requisite standing to

challenge, at least in part, or to support, at least in part, the

proposed rules: Adam Smith, Aloha Utilities, Interphase, Inc.,

Tahitian Development, Inc., Great Cypress Mobile Village, Inc.,

FCG, Pasco County, West Coast, and Concerned Citizens.

5. Adam Smith has demonstrated standing because it has
established that a zone of protection established around wells in

the Eldridge-Wilde Wellfield could reasonably be expected to

include part of Adam Smith's landholdings, and that such well

field is withdrawing from aquifers that the Department has

identified as most probably subject to reclassification.

Notably, the Department has identified this area for "mapping" by
the USGS, and proposes to present the areas mapped to the ERC for







FlLR CITE as 10 FALR 2454


reclassification. Under the circumstances, Adam Smith has shown
sufficient immediacy and reality of the rules' impact to its
property which, when juxtaposed with the restrictions that would
be placed on the use of that property, demonstrate standing.
6. Aloha Utilities has demonstrated standing in the

same manner as Adam Smith. Additionally, Aloha Utilities
operates sewage treatment facilities which would, as a
consequence of the proposed rules, be subject to "new discharge"
classification were their discharges improved, and is currently
acquiring lands for new sewage treatment facilities that would be
prohibited or restricted under the proposed rules. Finally,
Aloha Utilities operates a major public community drinking water

supply system as defined by the proposed rules, and is
withdrawing water from aquifers identified by the Department as

,P most probably subject to G-I reclassification.
7. Interphase, Inc., Tahitian Development, Inc., and

SGreat Cypress Mobile Village, Inc., have demonstrated standing in
the same manner as Adam Smith. Pasco County has demonstrated
standing in the same manner as Aloha Utilities.
8. FCG has demonstrated standing since its member

utilities are dischargers to groundwater, and some of those
discharges are proximate to aquifers subject to G-I

reclassification. Under such circumstances, it members would be
subject to "-ne0 discharge" reclassification in the same manner as
Alpha Utilities.

9. West Coast operates major public community drinking

water supply systems as defined by the proposed rules, and is
withdrawing water from aquifers identified by the Department as
most probably subject to G-I reclassification. Concerned
Citizen's members are users of water supplied by major public
community drinking water supply systems that are most likely
withdrawing from aquifers subject to reclassification. Under the

circumstances, West Coast and Concerned Citizens have

demonstrated standing.








r.


10 FALR 2455


IALR


10. Alliance, Barrington, Ltd., and Florida Land

Council, Inc., have failed to demonstrate standing for the

reasons set forth in the findings of fact. Phase 1 Homes, Inc.,

has failed to demonstrate standing since it failed to establish

how the proposed rules could reasonably be expected to impact its

property.

The rule adoption process

11. Protestants have raised a fundamental question

regarding the Department's compliance with the provisions of

Section 120.54, Florida Statutes in adopting the proposed rules.

Pertinent to this issue, the proof demonstrated that on October

31, 1986, the Department published notice in the Florida

Administrative Weekly of its intent to adopt proposed rules 17-

3.021, 17-3.403, 17-3.404, and 17-4.245, and advising that a

hearing woula be held before the ERC, which is the environmental

standard-setting body of the Department on December 16, 1986. At

the time of publication, the ERC had not approved the proposed

rules.


12. On November 14, 1986, and November 21, 1986,

respectively, Adam Smith (Case No. 86-4492R) and Aloha Utilities

(Case No. 86-4705) filed their petitions for a determination of

the invalidity of the proposed rules with the Division of

Administrative Hearings, pursuant to F.S. 120.54(4).

Notwithstanding the pendency of these petitions, which were duly

assigned to this hearing officer, the ERC held its scheduled

public hearing on December 16 and 17, 1986, and "adopted" the

proposed rules with certain changes.

13. Under the foregoing factual scenario, protestants

contend that the Department failed to comply with the provisions

of F.S. 120.54 relating to rule adoption, and that the proposed

rules are therefore invalid. Protestants' contention is not

persuasive.

14. The Department is an executive agency of the State

of Florida, within which is "created as part of the Department

... an Environmental Regulation Commission." Section 20.261,


I



I~i'

, !


1 :






ii



S::
',



'

i;

j,


CITE as






FLR CITE as 10 FALR 2456


Florida Statute. The Secretary of the Department has all the

powers and duties of heads of departments set forth in Chapter

20, Florida Statutes, including the power to adopt rules under

Chapter 403, Florida Statutes. However, the ERC "exercises" the

Department's standard-setting authority. Sections 403.804 and

403.805, Florida Statutes. Pertinent to this case, "standard" is
defined as:
...any rule of the Department of
Environmental Regulation relating
to...water quality.... The term "standard"
does not include rules of the department
which relate exclusively to the internal
management of the department, the
procedural processing of applications, the
administration of rulemaking or
adjudicatory proceedings, the publication
of notices, the conduct of hearings, or
other procedural matters. (Emphases added)

Section 403.803(13), Florida Statutes.
15. From the foregoing statutory authority it is clear

that regardless of whether the rule establishes a standard or is

procedural in nature it is a rule of the Department. To the

extent the rule proposes a standard it must, however, be approved

by the ERC.
16. A reading of Section 120.54, Florida Statutes,

reveals that rules adoption is a process. Agrico Chemical Co. v.

State Department of Environmental Regulation, 365 So.2d 760 (Fla.

1st DCA 1979).
The process of adoption outlined in the
Florida Administrative Procedure Act (APA)
includes the publication and delivery of
requisite notice (F.S. 120.54(1)), the
development of an economic impact statement
(F.S. 120.54(2)), the consideration, (under
certain circumstances) of evidence and
arguments presented at a public hearing
(F.S. 120.54(3)), the filing of the
proposed rule with the legislative
Administrative Procedures Committee-(F.S.
120.54(11)(a)) and the filing of the
proposed rule with the Department of State
(F.S. 120.54(11)(b)).

Id., at page 764. Finally, F.S. 120.54(13)(a), provides:
The proposed rule shall be adopted on
being filed with the Department of State-
and become effective 20 days after being
filed, on a later date specified in the
rule, or on a date required by statute....
(Emphasis added).





I"/1I I I


CITE as 10 FALR 2457 1I--LulA


17. From the foregoing, it is apparent that the rule

adoption process is a continuum of events that culminates in the

adoption of a rule when it is filed with the Secretary of State.

Pertinent to this case, Section 120.54(11)(b), Florida Statutes,

addresses when a proposed rule must be filed with the Secretary

of State, and provides:
... Filings shall be made no less than
28 days or more than 90 days after the
notice required by subsection (1). If a
public hearing is held, the 90-day limit is
extended to 21 days after adjournment of
the final hearing...or 21 days after
receipt of the transcript, if one is made,
whichever is latest. For purposes of this
paragraph, the term "public hearing"
includes any public meeting held by any
agency at which the rule is considered.
The filing of a petition for an
administrative determination under
subsection (4) will toll the 90-day period
during which a rule must be filed for
adoption until the hearing officer has
filed his order with the clerk.... (Emphasis
added).

Further, Section 120.54(4)(c), Florida Statutes, provides:
... No rule shall be filed for adoption
until 28 days after the notice required by
subsection (1) or until the hearing officer
has rendered his decision, as the case may
be. However, the agency may proceed with
all steps in the rulemaking process,
including the holding of a factfinding
hearing pursuant to subsection (3).
(Emphases added).

18. The procedure adopted by the Department in the

instant case comports with the essential requirements of law.

The subject rules are rules of the Department, which to the

extent they contain standards must be approved by the ERC. The

public hearing at which the ERC considered and approved the rules

was but one step in the rule adoption process, and was consistent

with Section 120.54(4)(c), Florida Statutes, which permits that

process to continue short of filing the'rule for adoption even

though a formal protest is filed. Under the circumstances, the

Department complied with the rulemaking provisions of 120.54,

Florida Statutes, and the proposed rules, together with the

changes proposed by the ERC, are a proper matter for


___






FILR CITE as 10 FALR 2458


consideration in this case.11

The rule challenge

19. To demonstrate that a proposed rule is an invalid

exercise of delegated legislative authority, the burden is upon

those who attack the proposed rule to show that:

...the agency, if it adopts the rule,
would exceed its authority; that the
requirements of the rule are not
appropriate to the.ends specified in the
legislative act; that the requirements
contained in the rule are not reasonably
related to the purpose of the enabling
legislation or that the proposed rule or
the requirements thereof are arbitrary or
capricious.

Aqrico Chemical Co. v. State, Department of Environmental

Regulation, 365 So.2d 760, 763 (Fla. 1st DCA 1979).

Additionally, rules have also been subject to challenge on such

basis because they were vague, failed to establish adequate

standards for agency decisions, and vested unbridled discretion

in the agency. See, e.g.: Barrow v. Holland, 125 So.2d 749

(Fla. 1960), State v. Cumming, 365 So.2d 153 (Fla. 1978), City of

Miami v. Save Brickell Ave., Inc., 426 So.2d 1100 (Fla. 3d DCA

1983), and Grove Isle Ltd. v. Department of Environmental

Regulation, 454 So.2d 571 (Fla. 1st DCA 1984). Recently, the

definition of invalid exercise of delegated legislative authority

was codified by amending Section 120.52(8), Florida Statutes, to

read as follows:
"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:
(a) The agency has materially failed to
follow the applicable rulemaking procedures
set forth in s.124.54;
(b) The agency has exceeded its grant of
rulemaking authority, citation to which is
required by s.120.54(7);

11
Agrico Chemical Co. v. State Department of
Environmental Regulation, supra, was a case with a similar
factual patter to the instant case. Its holding must, however,
be read in context with the statutory authority existent at that
time. SubseqUently, the provisions of Sections 120.54(4)(c) and
120.54(11)(b), Florida Statutes, were amended, and the holding in
Aqrico would no longer prevail. It is, however, a case
in






CITE as 10 FALR 2459 F ILR


(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. In this case, apart from the adequacy of the

economic impact statement, the protestants contend that the

proposed rules are vague, fail to establish adequate standards

for agency decisions, or vest unbridled discretion in the agency,

or that they are arbitrary or capricious. A rule is vague or

fails to establish adequate standards for agency decisions when
its terms are so vague that men of common intelligence must

necessarily guess at its meaning and differ as to its

application. State v. Cumming, supra. A rule vests unbridled

discretion in an agency when it fails to establish adequate

standards and reserves to the agency the arbitrary power to

determine private rights. Barrow v. Holland, supra. Arbitrary

and capricious action are defined in Agrico Chemical Co. v.

State, Department of Environmental Regulation, supra at 763, as

follows:
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.

21. Applying the foregoing standards to the facts of

this case demonstrates that proposed rules 17-3.021(20), 17-

3.403(7), and 17-3.403(8)(a), are an invalid exercise of

delegated legislative authority. The proof further demonstrates

that proposed rule 17-3.403(5)(e)2 is an invalid exercise of

delegated legislative authority because the ERC directive

regarding mapping priorities was not reduced to writing, and is

not therefore reasonably accessible for inspection. In all other

respects, the- proposed rules comport with the essential

requirements of law, or protestants have not demonstrated the

requisite standing to contest the rule's provisions, as noted in






FILR CITE as 10 FALR 2460

the attached appendix. See: Brewster Phosphates v. State.
Department of Environmental Requlation, 444 So.2d 483 (Fla. 1st
DCA 1984).
The economic impact statement
22. The economic impact statement (EIS) complies with

Section 120.54(2), Florida Statutes. The EIS adequately
addresses all the areas required by statute to be addressed and
adequately fulfills its purpose even though .the conclusions
therein may be subject to debate. Notably, the costs associated
with the proposed rules are currently speculative or incapable of
estimation in view of the fact that no zone of protection has yet
to be proposed. Under the circumstances, the Department can
hardly be faulted for failing to make estimates on the basis of
unknown variables. State, Department of Insurance v. Insurance
Service Office, 434 So.2d 908 (Fla. 1st DCA 1983), and Brewster
Phosphates v. State. Department of Environmental Regulation,
supra. Moreover, even if protestants' argument that the EIS was
inadequate had merit, they have failed to prove that the fairness
of the proceeding or the correctness of the action was impaired

by any of the alleged deficiencies. Florida Waterworks
Association v. Florida Public Service Commission, 473 So.2d 237

(Fla. 1st DCA 1985), and Polk v. School Board of Polk County, 373
So.2d 960 (Fla. 2d DCA 1979).
CONCLUSION

Based on the foregoing findings of fact and conclusions

of law, it is

ORDERED that proposed rules 17-3.021(20), 17-

3.403(5)(e)2, 17-3.403(7), and 17-3.403(8)(a) are invalid. With
regard to any challenge regarding the validity of the remaining
portions of the proposed rules, the petitions are denied.
DONE AND ORDERED in Tallahassee, Leon County, Florida,

this -L day of April, 1988.


WILL J. KEDR
Hearing Officer
Division of Administrative Hearings






CITE as 10 FALR 2461 LR ILR



Filed with the Clerk of the
Division of Administrative Hearings
this /Jt day of April, 1988.





I I










APPENDIX

The proposed findings of fact of Adam Smith are

addressed as follows: t
1-7. Addressed in paragraphs 7-10, and 32-38.
8-12. To the extent pertinent, addressed in
paragraphs 2-5.
13-82. Addressed in paragraphs 37, 38, and 88-94.
Otherwise rejected as contrary to the
proof, argumentative, subordinate or not
material. Further, Adam Smith has failed
to demonstrate standing to challenge the
small business aspects of the EIS or the
costs for sanitary landfills.
83-85. Rejected as subordinate.
86-91. Addressed in paragraphs 40-42. z.
92. Addressed in paragraphs 43 and 44.
93-97. To the extent pertinent, addressed in
paragraphs 45-47.
98-99. Addressed in paragraphs 48 and 49.
100. Rejected as argument.
101-102. Addressed in paragraphs 50 and 51.
103. Rejected as not supported by fact or
logic.
104-105. Addressed in paragraphs 52-56.
106-108. Addressed in paragraphs 57-67.
109-110. Addressed in paragraphs 68-85.
111. Rejected as contrary to the proof. The
terms have an accepted meaning among
hydrogeologists, and can be applied site '
specific. '
112. Rejected since Adam Smith did not
demonstrate standing to raise.i
113-116. Addressed in paragraphs 85-87.
117-118. Rejected as not supported by the proof or
logic. The terminology has an accepted
meaning among hydrogeologists, and
reasonable standards and criteria are
established.
119. Rejected as not relevant. See:
Conclusions of law.
120. Rejected since Adam Smith did not
demonstrate standing to raise.







FlLR CITE as 10 FALR 2462


The proposed findings of fact filed on behalf of Aloha

Utilities, Inc. Interphase, Inc.; Phase 1 Homes, Inc.; Great

Cypress Mobile Village, Inc.; and Barrington, Ltd., are addressed

as follows:
1-24. Addressed in paragraphs 12-22, and 32-38.
25-169. Addressed in paragraphs 88-94. Otherwise
rejected as contrary to the proof,
argumentative, subordinate or not
material.
170-176. Addressed in paragraphs 48, 49, and 72.
77-181. Rejected as subordinate or not material.
181-194. Addressed in paragraphs 58 and 72.
Otherwise rejected as subordinate.
195-203. Addressed in paragraph 72. Otherwise
rejected as subordinate.
204-208. Rejected since the parties did not
demonstrate standing to raise.
209-233. Addressed in paragraphs 29, 30, and 74.
Otherwise rejected as subordinate or
argumentative.
234-237. Addressed in paragraphs 40-42, and 63-67.
238-246. Addressed in paragraphs 50-51. Otherwise
rejected as subordinate or argumentative.
247-254. Addressed in paragraphs 40-49.
255-257. Rejected as argument or subordinate.
258-287. Addressed in paragraphs 68-84. Otherwise
rejected as subordinate.
288-343. Addressed in paragraphs 57-67. Otherwise
rejected as subordinate.
344-391. Addressed in paragraphs 68-84. Otherwise
rejected as subordinate.
392-395. Rejected as not relevant or cumulative.
396-397. Addressed in paragraphs 54-5G.
398-400. Rejected as not relevant.
401-406. Rejected as not relevant.
407-447. To the extent pertinent, addressed in
paragraphs 68-87. Otherwise rejected as
subordinate.
448-450. Addressed in paragraph 4 and footnote 1.

The Department's purposed findings of fact are

addressed as"-follows:
1-5. Addressed in paragraphs 1-6.
6-28. Addressed in paragraphs 7-31.
29-40. Addressed in paragraphs 32-38.
41-42. Addressed in paragraph 72. Otherwise
rejected as subordinate.
43. Addressed in paragraphs 40-42.
44. Addressed in footnote 6.
45. Addressed in paragraph 69.
46. Rejected as subordinate or not material.
47-59. Addressed in paragraphs 68-84.
60-66. Addressed in paragraphs 57-67.
67. Addressed in paragraphs 85-87.
68. Addressed in paragraphs 37 and 38.
69-74. Addressed in paragraphs 88-94.

The proposed findings of fact of Florida Electric Power

Coordinating Group, Inc., are addressed as follows:
1-4. Addressed in paragraphs 23, 24, 37, and
38.






CITE as 10 FALR 2463 F| ILR

5-13. Addressed in paragraphs 70-84.

Pasco County submitted proposed findings of fact which

consisted of two unnumbered paragraphs. These paragraphs are

addressed in findings of fact numbered 26, 27, 37, and 38.
The proposed findings of fact filed on behalf of West

Coast are addressed as follows:
1-2. Addressed in paragraphs 4 and 5.
Otherwise rejected as a conclusion of law.
3-17. Addressed in paragraphs 6-31, 37, and 38.
18-21. Addressed in paragraphs 88-94.
22-23. Addressed in paragraphs 32.36.
24-31. Addressed in paragraphs 68-84.
32-38. Addrcsocd in paragraph= 57-67.

The proposed findings of fact filed on behalf of

Concerned Citizens are addressed as follows:
1-14. To the extent pertinent addressed in
paragraphs 6-31, 37, and 38. Otherwise
rejected as argument or legal conclusions.
15-34. Addressed in paragraphs 88-94. Otherwise
rejected as argument or legal conclusions.
35. Rejected as a legal conclusion.
36-37. Rejected since no party demonstrated
standing to raise. Further, this is a
rule challenge. If the parties desired
rule making, they may petition pursuant to
Section 120.54(5), Florida Statutes.
38-49. Rejected as argument or legal conclusions.
50-51. Addressed in paragraphs 57-67.
52-56. Addressed in paragraphs 68-87.
57-58. To the extent pertinent, addressed in
paragraphs 50 and 51.
59. Addressed in paragraph 69.
60-61. Addressed in paragraphs 85-87.
62-65. Addressed in paragraphs 85-87.




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