Title: Lecture Outlines plus Lecture Program and Speaker Evaluatiion Form - Water Use - Difficult Decisions for the 90's/May 26-27, 1988
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 Material Information
Title: Lecture Outlines plus Lecture Program and Speaker Evaluatiion Form - Water Use - Difficult Decisions for the 90's/May 26-27, 1988
Physical Description: Book
Language: English
Publisher: The Florida Bar Continuing Legal Education Committee and the Environmental and Land Use Law Section
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Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Richard Hamann Collection - Lecture Outlines plus Lecture Program and Speaker Evaluatiion Form - Water Use - Difficult Decisions for the 90's/May 26-27, 1988
General Note: Box 25, Folder 1 ( Water Use - Difficult Decisions for the 90's - 1988 ), Item 1Le
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00004669
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





















Copyright 1988
The Florida Bar














PREFACE

The course materials in this booklet were
prepared for use by the registrants attending
our Continuing Legal Education course during
the lectures and later in their offices.

The Florida Bar is indebted to the members
of the Steering Committee, the lecturers
and authors for their donations of time and
talent, but does not have an official view
of their work products.



DESIGNATION CREDIT
The Florida Bar has approved this course under the Florida Designation
Plan for a maximum of nine (9) hours in the following areas:
Administrative and Environmental Law . 9 hours
Governmental Law ... 9 hours General Practice ...... 9 hours
Appellate Practice . 5 hours Trial Practice-General 9 hours
CERTIFICATION CREDIT
C ivil T rial . . . . . . . 7 hours
Policy does not permit double credit. Any combination of the above may be used
providing the total does not exceed the maximum for the area or the total for the
course.
EACH LAWYER MUST KEEP RECORDS OF EARNED CREDITS AND ITEMIZE
THEM IN THE APPLICATION FOR RENEWAL OF PERMISSION TO DESIGNATE
NEAR THE END OF THE THREE-YEAR PERIOD.




CLER CREDIT
This course has been approved for 9 hours of general CLER credit and .5
hours of ethics credit.











COURSE CLASSIFIACTION


The Steering Committee for this course had
determined its content to be INTERMEDIATE.





LECTURE PROGRAM

Thursday, May 26, 1988


8:45 a.m.- 9:00 a.m.
9:00 a.m.- 9:15 a.m.


9:15 a.m.-10:00 a.m.


10:00 a.m.-10:15 a.m.
10:15 a.m.-12:00 p.m.


12:00 p.m.- 2:00 p.m.


2:00 p.m.- 2:45 p.m.








2:45 p.m.- 3:00 p.m.
3:00 p.m.- 4.45 p.m.


Late Registration
Chairman's Welcome- Thomas A. Cloud
Introduction and Opening Remarks-
Irene Kennedy Quincey, Program Chairman
A History of Water Management-An Overview
L.M. "Buddy" Blain, Tampa
An informative description of the evolution of
water rights in Florida. A discussion of the cur-
rent framework for the protection of the water
resources in Florida set against the backdrop of
the Sundown of the Water Management Districts,
concluding with a predictive analysis of the fu-
ture of water management.
Coffee Break
Emerging Issues For Consumptive Water Users
Stephen A. Walker, West Palm Beach
William L. Earl, Miami
A discussion of the pending issues facing appli-
cations and renewals for consumptive water use
permits now that the easy decisions have been
made. The key issues facing Florida's future for
water supply and protection will be analyzed, in-
cluding: District Water Use Management Plans,
Water Use Permit Renewals, Competing Water
Users, the Impacts of Water Use on the Resource,
Interdistrict Transfer of Water and other relevant
issues.
Luncheon (included in registration fee)
Guest Speaker: Congressman Daniel A. "Dan"
Mica, Boynton Beach
"Groundwater Hydrology"-The Terms You Need
To Know
R.S. Murali, Director, Environmental Permitting
General Development Corporation, Miami
A primer on groundwater hydrology. The term
and definitions relating to groundwater protec-
tion and contamination, including an introduc-
tion to the technical and scientific principles of
hydrology.
Break
Groundwater Protection: Must We Drink Bottled
Water? A Panel Discussion
Nancy Malley Graham. West Palm Beach. Mod-
erator
James R. Brindell. West Palm Beach
Biff Craine. Tampa
Cynthia K. Christen. Tallahassee
iii
















5:00 p.m.- 6:00 p.m.

Friday, May 27, 1988
8:00 a.m.- 8:30 a.m.
8:30 a.m.-10:00 a.m.


10:00 a.m.-10:15 a.m.
10:15 a.m.-10:45 a.m.


10:45 a.m.-11:30 a.m.


11 30 a m -12.00 noon


Gary Horwitch, Environmental Science & Engi-
neering, Gainesville
A discussion of the serious issues facing our
groundwater supply, including the relationship
between local wellfield protection ordinances and
DER's groundwater rule; groundwater contami-
nation and cleanup and groundwater protection/
landfills.

Reception


Coffee
Water Resource Protection Through Comprehen-
sive Planning: A Panel Discussion
Irene Kennedy Quincey, West Palm Beach,
Moderator
John H. Hankinson, Jr., Palatka
Clifton A. McClelland, Jr., Melbourne
John O. McKirchy, Tallahassee
E. Lee Worsham, West Palm Beach
A discussion of the inter-relationship between
comprehensive plans and water resource regu-
lations, including considerations of the element
of the comprehensive plan from the viewpoint
of the Department of Community Affairs, the
Water Management Districts, the Regional Plan-
ning Councils, Local Governments and interested
persons
Break
Water, Water Everywhere?
Jacqulyn M. Larson, Geraghty & Miller, Inc., Palm
Beach Gardens
Dan Rothenberger, Geraghty & Miller, Inc.,
Tampa
A case study based upon the technical and busi-
ness decisions of locating and permitting a well-
field from the public water supplier's perspec-
tive, including the decision points on providing
an increased supply to Florida's ever expanding
population and the decision process when the
supply is threatened at the wellhead or the source.
SWIM, An Acronym: What Does It Mean?
Vance W Kidder, Tallahassee
The Surface Water Improvement and Manage-
ment Act established priorities, but how, why,
for whom and when and what has been done?
An inquisitive update discussion
Ethical Considerations and Concluding Remarks
on Federal Water Pollution Regulations
Professor Joel Mintz. Nova University Center for
the Study of Law. Ft. Lauderdale

















FACULTY AND STEERING COMMITTEE
Irene M. Kennedy Quincey, West Palm Beach-Program Chairman
Nancy M. Graham, West Palm Beach-Program Co-Chairman


L.M. "Buddy" Blain, Tampa
James R. Brindell, W. Palm Beach
Cynthia K. Christen, Tallahassee
Thomas A. Cloud, Orlando
Biff Craine, Tampa
William L. Earl, Miami
John H. Hankinson, Jr., Palatka
Gary Horwitch, Gainesville
Vance W. Kidder, Tallahassee


Jacqulyn M. Larson, P. B. Gardens
Alfred J. Malefatto, West Palm Beach
Clifton A. McClelland, Jr., Melbourne
John O. McKirchy, Tallahassee
Daniel A. Mica, Boynton Beach
Joel Mintz, Ft. Lauderdale
R.S. Murali, Miami
Dan Rothenberger, Tampa
Stephen A. Walker, West Palm Beach
E. Lee Worsham, West Palm Beach


ENVIRONMENTAL AND LAND USE LAW SECTION
Thomas A. Cloud-Orlando, Chairman
Roger W. Sims-Lakeland, Chairman-elect
Douglas M. Halsey-Miami, Chairman-CLE Committee
Daniel H. Thompson-Tallahassee, Chairman-CLE Seminars

CLE COMMITTEE
Patrick J. Casey, Chairman
John N. Hogenmuller, Director-CLE Programs








TABLE OF CONTENTS

A HISTORY OF WATER MANAGEMENT AN OVERVIEW
L.M. Buddy Blain, Tampa

I. Evolution of Water Rights . . 1.
II. Current Framework for Protection
of Water Resources, and the
Sundown Act . . . 1.
III. The Future of Water Management . 1.

EMERGING ISSUES FOR CONSUMPTIVE WATER USERS
Stephen A. Walker, West Palm Beach

Outline not available at press time . 2.

EMERGING ISSUES FOR CONSUMPTIVE WATER USERS
William L. Earl, Miami

Outline not available at press time . 3

"GROUND WATER HYDROLOGY" THE TERMS YOU NEED TO KNOW
R.S. Murali, Miami


II.
III.
IV.
V.
VI.
VII.


Introduction . . .
Ground water and Hydrological
Groundwater Definitions .
Groundwater Contaminants .
Groundwater Protection . .
Conclusion . . .
References . . .


1


.17
25


.1


.1


. . 4.1
. . 4.1
. . 4.3
. . 4.6
. . 4.9
. . 4.11
. . 4.11


GROUNDWATER PROTECTION: MUST WE DRINK BOTTLED WATER?
James R. Brindell, West Palm Beach

I.
II. Threshold Considerations for
the development of the Wellfield
Protection Ordinance . . .. 5.1
III. Zones of Influence . . ... 5.3
IV. Permit Exemptions . . ... 5.3
V. Permits and Procedures . ... 5.5








VI. Compensation . . .... ... 5.5
VII. Program Administration . ... 5.6

OUTLINE OF REMARKS DER RESPONSE TO GROUNDWATER
CONTAMINATION
Biff Craine, Tampa

I. Outline of remarks . . .... 6.1
II. Consent Order . . .... 6.6
II. Notice of Violation and
Orders for Corrective Action ..... 6.15

DER's GROUND WATER RULE
Cynthia K. Christen, Tallahassee

I. What is Ground Water? . ... 7.1
II. Classes of Ground Water . ... 7.1
III. Zone Of Discharge ("ZOD") . ... 7.6
IV. Monitoring Requirements . ... 7.8
V. The Wellfield Protection G-I Rule . 7.10

WATER USAGE IN THE 1990s LANDFILL DESIGN
Gary Horwitch, Gainsville

I. Introduction . . . ... 8.1
II. Landfill Design . . .... 8.2
III. Surface Water Design . . ... .8.3
IV. Groundwater Monitoring System . .. .8.3

WATER MANAGEMENT AND COMPREHENSIVE PLANNING:
THE DISTRICTS JOIN THE PARADE
John H. Hankinson, Jr., Palatka

I. Local Comprehensive plan review
activities by District . ... 9.3
II. Local Government Comprehensive
Plan Review and District
Permitting Programs . . ... 9.4
III. Conclusion . . . ... 9.5


vii








WATER RESOURCE PROTECTION THROUGH COMPREHENSIVE
PLANNING
Clifton A. McClelland, Jr., Melbourne

I. Levels of Service .......... 10.1
II. Power to Set Levels of Service . .. 10.1
III. Potable water, Sanitary Sewer,
and Drainage . . . 10.2
IV. Water . . . . 10.3
V. Typical Levels of Service . ... 10.3
VI. Sewage . . . . 10.4
VII. Drainage . . . . 10.4
VIII. Challenges In the Planning Process . 10.5
IX Hearing Officer Review . ... .10.6
X. Intergovernmental Coordination . .. .10.7
XI. Constitutional Limitations . ... 10.8
XII. Map 14 . . . . 10.10
XIII. Map 15 . .... . 10.11
XIV. Map 1 . . .... . 10.12

COMPREHENSIVE PLAN PROVISIONS FOR WATER RESOURCES
AND FACILITIES
John 0. McKirchy, Tallahassee

I. Introduction .. .. . 11.1
II. Comprehensive Plan Provisions
for Potable Water . . .. .11.1
III. Plan Elements Addressing Water . .. .11.2
IV. Plan Review and Adoption;
Determination of Compliance ..... 11.4
V. Substantive Issues Related to
DCA Review . . . . 11.7

WATER RESOURCE PROTECTION FROM THE PERSPECTIVE OF
THE REGIONAL PLANNING COUNCILS
E. Lee Worsham, West Palm Beach . ... 12.1

WATER, WATER EVERYWHERE?
Jacqulyn M. Larson, Palm Beach Gardens

I. Quantity . . . . 13.1
II. Quality . . ..... 13.1


viii








III. We're Going To Present Two
Case Histories that Exemplify
the Efforts that Utilities are
Making in Order to Supply
Potable Water To Their Customers .... .13.2

MEETING WATER NEEDS IN SOUTH-CENTRAL HILLSBOROUGH
COUNTY
Daniel W. Rothenberger, Tampa

I. Determination of Water Needs ..... 14.1
II. Hydrologic Testing Results . ... 14.2
III. Permitting and Administrative
Process . . . ... .14.4
IV. Well Field Construction . ... .14.5

SWIM, AN ACRONYM: WHAT DOES IT MEAN?
Vance Kidder, Tallahassee

I. Legislative HISTORY . . .. 15.3
II. Sections 373.451 . . ... .15.6
III. Implementation to Date . ... 15.11
IV. Things to Come . . .... 15.13
V. Conclusion . . . .... 15.16
Appendix A . . . .... 15.17
Appendix B . . . .... 15.20
Appendix C . . . .... 15.21
Appendix D . . . ... 15.22
Appendix E . . . ... 15.23
Appendix F . . . ... 15.24
Appendix G . . . ... 15.25










/fl:ia- Ccj)r- / rJL








ABOUT THE SPEAKERS

L. M. BUDDY BLAIN practices law in the highly
specialized Tampa, Florida firm of Blain & Cone, P.A.
This firm devotes its practice to water law and
property rights, including permitting and regulatory
activities, and real estate matters. Buddy devotes
most of his time to water-related matters. His
education includes a B. S. in Education and a law
degree (LLB, replaced by J.D.) from the University of
Florida. Buddy has played an active and significant
role in drafting and implementing Florida Water
Resource laws and regulations since 1965. He has also
had extensive jury trial experience. He served as
attorney for Southwest Florida Water Management
District (a 15 county district) for 18 years until he
withdrew as its General Counsel in 1983. He.has had 21
years experience in trial and administrative hearings,
particularly in connection with water rights and use
permits, well construction regulation and other water
management matters. He also has had extensive
experience in eminent domain proceedings and real
estate title work. Upon graduation from law school
Buddy served as Special Assistant (Florida) Attorney
General in Statutory Revision and Bill Drafting.
Subsequently he served as attorney to the Florida
Senate Urban Affairs and Local Government Committee and
to the Florida Senate Natural Resources Committee.
Governor Martinez appointed him to the Environmental
Efficiency Study Commission. Buddy recently has been
elected as the Director-at-Large of the American Water
Resources Association and serves on its Board of
Directors and its Executive Committee. He also is
currently Chairman of the Statutes and Bylaws Committee
and is General Chairman for the National AWRA
Convention and Wetlands Symposium to be held in Tampa
in 1989. He has been active in the Florida Section of
AWRA since 1975, served on its Board of Directors for
ten years and was president in 1981-82. He is past
co-chairman of the Agricultural Law Committee of the
Florida Bar, Past Chairman of the Agribusiness Council
of the Greater Tampa Chamber of Commerce and Past
Chairman of the Chamber's Environmental Task Force. In


x










January he conducted his seventh annual week-long
seminar on water management. He has written numerous
articles on water management for legal and technical
publications, and appears frequently as speaker or
panelist at seminars and short courses relating to
water, administrative and other environmental topics
and real property.

STEPHEN A. WALKER is District Counsel for the South
Florida Water Management District. He received his
B.S. from Penn State University in 1969 and his J.D.
from the University of Florida in 1974. Mr. Walker was
formerly General Counsel at the Southwest Florida Water
Management District and Deputy District Counsel at
South Florida. He has been involved with the
development of the water management district's
regulatory programs since their inception.

WILLIAM L. EARL is a partner of Peeples, Earl & Blank,
with offices in Miami and Sarasota, Florida. Mr. Earl
graduated from the University of Florida College of
Law, where he served as Executive Editor of the
University of Florida Law Review. Mr. Earl assisted
Frank E. Maloney in researching and drafting the Model
Water Code. Mr. Earl was the Director of the Eastern
Water Law Center, where he supervised research and
drafting of water use and water pollution abatement
ordinances, statutes and regulations. Mr. Earl
thereafter became corporate environmental counsel to a
major Miami-based Florida real estate developer.
Mr. Earl has published extensively and presently
represents both local government and private sector
clients regarding hazardous waste matters and land and
water use issues.

R. S. MURALI is the Director of Environmental
Permitting and Standards for General Development
Corporation. He graduated from the Indian Institute of
Technology, Bombay, India, with a Master's degree in
Applied Geology. He has also done four years of
graduate work in Sedimentology at Florida State
University. Prior to joining General Development
Corporation in 1980, he worked as the Hydrographic








Engineer with Department of Environmental Regulation in
Tallahassee. He is an affiliate member of
Environmental and Land Use section of the Florida Bar
as well as a member of Sigma Xi, the honorary
scientific and research society of North America.

JAMES R. BRINDELL is a partner in charge of the Land
Use, Environmental, and Administrative Law Department
of Gunster, Yoakley, Criser & Stewart, P.A. in West
Palm Beach, Florida. He is the former General Counsel
and Director of Permitting for the Florida DER and is
past Chairman of the Environmental and Land Use Law
Section. Currently, he is Vice-Chairman of the Palm
Beach County Water Resources Management Advisory Board,
is Chairman of the Wellfield Protection Ordinance
Subcommittee and Vice President of the Chamber of
Commerce of the Palm Beaches. Mr. Brindell served as a
member of the Marketable Record Title Act Study
Commission and is the author of numerous articles on
land use and environmental law topics.

BIFF CRAINE joined the Tampa office as a member of the
Land Use and Environmental Law Department in 1986. He
graduated with a B.S. from Florida State University in
1977 and went on to serve as Executive Director of the
Florida Democratic Party, Political Affairs Coordinator
of the Florida Association of Realtors, and as a
partner in the political consulting firm of Greg Farmer
& Associates prior to attending the Florida State
University College of Law where he received his J.D. in
1986 with honors. During law school, he served as
President of the Student Bar Association, a member of
Law Review, and he garnered the American Jurisprudence
Book Award in Contracts and the Thomas Pelham Book
Award in Land Use Regulation. Mr. Craine is an active
member of the Environmental and Land Use Law Section of
The Florida Bar and the Greater Tampa Chamber of
Commerce. His outside interests include politics and
music.

CYNTHIA K. CHRISTEN is a senior attorney with the State
of Florida Department of Environmental Regulation. Her
B. Ed. degree is from the University of Miami, and her



xii










J.D. is from the University of Florida. In 1980 she
was admitted to The Florida Bar. At the Department of
Environmental Regulation Ms. Christen has worked in the
enforcement section handling many ground water
contamination cases as well the full spectrum of other
types of enforcement cases. Since 1984 she has been
the ground water and drinking water attorney, primarily
responsible for rulemaking.

G.R. HORWITCH has over 13 years experience in
commercial, industrial, and government related
consulting experience associated with siting studies,
geotechnical, hydrological, and civil engineering
services. He presently heads Environmental Science and
Engineering's geotechnical/hazardous waste permitting
department in Gainesville, Florida. He also has been
involved in the siting and permitting and design of
hazardous waste landfills in Texas, Arkansas, Florida,
Mississippi, and Colorado. Since joining ESE, Mr.
Horowitch has been the engineer of record during the
design of two National Priority List superfund sites.
He is also a registered professional engineer in the
states of Texas, Arkansas, and Florida.

JOHN H. HANKINSON, JR. is Director of Land Acquisition
and Interim Director for the Office of Policy and
Planning with the St. Johns River Water Management
District in Palatka, Florida. He graduated form
Florida Presbyterian College and received his Law
Degree from the University of Florida. He is past
Chairman of the Environmental Law Section's Public
Interest Committee, and has worked as Attorney for the
Legal and Environmental Assistance Foundation and as
Executive Director for Florida Defenders of the
Environmental Service Center. He served on the
Governor's Environmental and Land Management Study
Committee II (ELMS II) which developed the framework
for the State Comprehensive Planning law and
subsequently worked for the Governor's Office in
drafting the Growth Management portion of the State
Comprehensive Plan. He also worked in the Florida
House of Representatives as an Analyst and Staff
Director for the House Committee on Regulatory Reform.


xiii








CLIFTON A. MCCLELLAND, Jr., is with the firm of Potter,
McClelland and Marks, P.A., Melbourne, Florida. He has
practiced in the areas of environmental, land use and
eminent domain law. He received his undergraduate
degree in 1966 and his law degree from the University
of Florida in 1969. Mr. McClelland has taught
environmental law as an adjunct professor at Florida
Institute of Technology. He coauthored the chapter
"Authority to Condemn" of Florida Eminent Domain
Practice and Procedure, The Florida Bar (1977). He has
served as chairman of the Marine Resources Council of
East Central Florida.

JOHN 0. MCKIRCHY is a Senior Attorney for the Florida
Department of Community Affairs, and practices in the
areas of comprehensive planning and local land
development regulation law. Mr. McKirchy received his
J.D. from S.U.N.Y. at Buffalo in 1979 and his M.A. in
Urban Planning from U.C.L.A. in 1980. He is a member.
of the Environmental and Land Use Section of the
Florida Bar.

E. LEE WORSHAM Partner in charge of the Land Use and
Environmental Law Department at Honigman Miller
Schwartz and Cohn, West Palm Beach. Formerly, he was a
Senior Attorney at the Department of Community Affairs
and General Counsel to St. Johns River Water Management
District. He is a hydrologist and now he specializes
in environmental and land use law. His clients include
those whose development interests are being affected by
local, regional and state growth management policy
decisions.

JACQULYN M. LARSON is a graduate of University of South
Florida with a B.A. in chemistry. She has twelve years
of experience in Florida water-quality issues, from
testifying before the ERC to consulting with clients.
Ms. Larson currently is a Senior Scientist with
Geraghty & Miller's Palm Beach Gardens office. Her
principal responsibility is marketing; however, she is
also involved with project management on surface- and
ground-water quality matters.


xiv










DANIEL W. ROTHENBERGER is an Associate of Geraghty &
Miller, Inc., and manager of the Tampa office. Mr.
Rothenberger received a B.A. in geology in 1979 and has
completed graduate courses in hydrogeology from the
University of South Florida. He is a licensed
professional geologist. Since joining Geraghty &
Miller, Inc., in 1980, he has been the project manager
of numerous studies that included waste disposal
investigations and ground-water supply and management
projects. In this regard, Mr. Rothenberger is
responsible for analyzing hydrogeologic and
water-quality data, preparing reports and coordinating
efforts with regulatory agencies.

VANCE W. KIDDER is a member of Spriggs & Kidder, P.A.
in Tallahassee. He received his B.A. in 1969 from
Rutgers College of Rutgers University, his J.D. in 1972
from Stetson University and his LL.M-Ocean Law in 1975
from the University of Miami. He was formerly General
Counsel and Chief Regulatory Counsel for the St. Johns
River Water Management District, Counsel to the Florida
House of Representatives Natural Resource Committee and
Assistant General Counsel, Department of Environmental
Regulation and Special Assistant Attorney General. He
is a member of The Florida Bar, its Environmental and
Land Use Law Section and its Agricultural Law
Committee. He is a frequent lecturer and author on
environmental and land use matters.













A HISTORY OF WATER
MANAGEMENT AN OVERVIEW


L. M. Buddy Blain
Tampa









A HISTORY OF WATER
MANAGEMENT AN OVERVIEW


L. M. Buddy Blain
Blain & Cone, P.A.
Tampa, Florida



After almost 100 years of organized
efforts to control and manage its water,
Florida has a very good system of water
management that governs private water use and
protects the resource. This overview first
discusses how the common law water rights in
Florida have merged into the current
regulatory system, treating surface water
rights, groundwater rights, and diffused
surface water rights separately. It then
describes the current system. The future of
water management in Florida will be discussed
during the lecture.

I. Evolution of Water Rights in Florida

A. Diffused Surface Water

1. Each and every owner of land,
even non-riparian land, has certain common
law rights regarding diffused surface water.
This is water that flows without any defined
channel. It may be simply stormwater. The
common law rule is that an owner of higher
lands has a servitude on lower lands to
discharge naturally occurring surface water.
This servitude extends only to natural flow
and cannot be increased by man.










2. The upper owner also cannot
divert the flow of naturally occurring
surface water. New Homes of Pensacola, Inc.
v. Mayne, 169 So2d 345 (1st DCA 1964);
Seminole County v. Mertz, 415 So2d 1286 (5th
DCA 1982).

3. Interference with diffused
surface water flow may be a nuisance (one
landowner's use of his property interferes
with other landowner's use and enjoyment of
his property). Intent, degree of care, or
negligence is not an essential element of an
action for nuisance. A nuisance usually is a
continuing act or situation. Injunction, or
damages in the appropriate case, may be
sought as a remedy for increases in or
diversion of natural diffused surface water.
Brumley v. Dorner, 83 So. 912 (Fla. 1919);
Edason v. Denison, 194 So. 342 (Fla. 1940);
Stoer v. Ocala Mfg., Ice & Packing Co., 24
So2d 579 (Fla. 1946); New Homes of Pensacola,
Inc. v. Mayne, 169 So2d 345 (1st DCA 1964);
Seminole County v. Mertz, 415 So2d 1286 (5th
DCA 1982).

a. Note, however, that
injunctions require that the defendant stop
the activity that causes the nuisance, or
that the defendant take positive steps to
correct the nuisance. As a matter of
practicality, this means that an injunction
will afford little or no relief when the
person or entity that is primarily
responsible for changing or increasing the
surface water flow such as a property
developer has long since departed with all
title and interest in, or responsibility for,
the land or the offending condition.


1.2









4. An unnatural increase in
surface water flow may be a trespass (use of
another's land without permission). A true
trespass involves a forcible or direct
unauthorized entry onto another's land, with
intent or negligence. A trespass usually is
a single act or acts, although there may be a
continuing trespass.

5. The statute of limitations for
nuisance and trespass is four years. This
may be impractical where the impacts of
additions to surface water flow are not
apparent for years; the degree to which the
impact is felt can be influenced by the
overall wetness or dryness of the intervening
years. In the meantime, the person or entity
responsible may depart, selling the land.

a. There is legal support
for the argument that, when a tort involves a
continuing injury, the cause of action
accrues and the statute of limitations begins
to run when the tortious conduct ceases.

b. If the damage to the land
is permanent (for example, the land now
serves as a regional retention basin), the
statute of limitations does not begin to run
until the damage is apparent and it becomes
obvious that the damage is of a permanent
character.

6. An action for inverse
condemnation may be an appropriate remedy
when the state or some other body with









eminent domain powers:


a. Fills in natural drainage
areas, thereby causing flooding;

b. Obstructs natural flow of
channelized diffused surface water, causing
flooding;

c. Changes natural drainage
patterns by, for example, constructing a
roadway;

d. Raises lake levels by
raising the grade of a road or by
constructing dams; or

e. Negligently constructs a
drainage system, causing flooding.

7. Generally, inverse
condemnation is appropriate only when there
is a permanent invasion of the property (this
requirement may be fulfilled by the fact that
the property floods whenever it rains),
rendering the property useless. See Arundel
Corporation v. Griffin, 103 So 422 (Fla.
1925); State Road Department v. Tharp, 1 So2d
868 (Fla. 1941); Poe v. State Road
Department, 127 So2d 898 (1st DCA 1961);
Dudley v. Orange County, 137 So2d 859 (2d
DCA), app. dism. 146 So2d 379 (Fla. 1962),
cert. denied, 372 US 959 (1963); Kendry v.
State Road Department, 213 So2d 23 (4th DCA
1968), cert. denied, 222 So2d 752 (Fla.
1969); Elliott v. Hernando County, 281 So2d
395 (2d DCA 1973); Thompson v. Nassau County,
343 So2d 965 (1st DCA 1977); D.O.T. v.
Burnette, 384 So2d 916 (1st DCA 1980);





1.4









Leon County v. Smith, 397 So2d 362 (1st DCA
1981); Hillsborough County v. Gutierrez, 433
So2d 1337 (2d DCA 1983).

a. If the required elements
are not present for inverse condemnation,
injunction may nevertheless be appropriate.

8. The common law right to
control and capture diffused surface water
became the subject of water management
legislation in 1893, with the first of
Florida's "ditch and drain" laws. At that
time, and for a long time thereafter,
Florida's main concern in managing its water
was controlling and impounding excess flow.
Chapter 4178, 1893 Fla. Laws, the state's
first significant water resources law,
authorized any board of county commissioners
to construct drains, ditches or watercourses
upon petition of two or more landowners. In
1901, the legislature provided additional
authorization for counties to ditch and drain
upon private initiative, should the county
determine that such reclamation would be
necessary or beneficial for agriculture, or
the public health and sanitation.

9. In 1913, the state began its
experiment with local special districts for
water management purposes. Chapter 6458,
1913 Fla. Laws, allowed formation of drainage
districts based upon the petition of the
majority of landowners within the proposed
district or the owners of the majority of the
land. The trend of independent lay boards
began with these early drainage districts,
which had three-member boards of supervisors
elected on a per acreage voting basis. The


1.5








Everglades Drainage District was created in
1913, and other special districts were
created based upon the 1913 legislation.
Chapter 6458 was codified as Chapter 298,
Florida Statutes, and these special districts
became known as "Chapter 298 districts" to
distinguish them from other water-related
special districts. Chapter 298 districts did
not have any regulatory powers and were not
subject to state supervision or direction;
they functioned as purely local and privately
governed districts.

10. After two hurricanes within
one month in 1947, Florida turned its
attention to flood control, enacting the
Flood Control Act, Chapter 25209, 1949 Fla.
Laws, which focused on construction of
project works and acquisition of land for
water storage. Flood control districts could
be formed upon petition by the State Board of
Conservation and the owners of the majority
of the land. Flood control.districts were
authorized only for areas included in federal
flood control projects. The districts
blended state supervision with private sector
participation. The districts had no
regulatory powers, and were limited to
cooperation with the federal government in
its flood control projects, and to
construction, maintenance, and operation of
works and projects such as canals, levees,
dikes, and pumping stations. The Act was
codified as Chapter 378, Florida Statutes,
"Flood Control", and flood control districts
were also known as "Chapter 378 districts" to
distinguish them from other types of water
management districts.


1.6









11. In 1949, the legislature also
created the Central and Southern Florida
Flood Control District for the purposes set
forth in Chapter 25209, 1949 Fla. Laws. The
structure conformed to Chapter 25209, 1949
Fla. Laws, except that the Central and
Southern board was authorized to levy ad
valorem taxes. Chapters 25214 and 25270,
1949 Fla. Laws. The Central and Southern
district, governed by a board of five lay
gubernatorial appointees, completely replaced
the Okeechobee Flood Control District and the
Everglades Drainage District, which were
abolished.

12. After disastrous floods in
March 1959, March 1960, and September 1960,
the 1961 legislature created a flood control
district for Southwest Florida. Like the
Central and Southern Flood Control District,
the new district was created to cooperate
under Chapter 378 with federal flood control
projects. However, the Southwest district
was called a "water management district"
rather than a "flood control district",
representing a subtle change in the state's
water policy since the 1949 legislation.

13. In 1972, the state completely
revised water resource management law by
passage of the Florida Water Resources Act of
1972. This repealed much of Chapters 373 and
378, Florida Statutes, and completely amended
the Water Resources Law which had first been
enacted as Chapter 57-380, 1957 Fla. Laws,
and had been amended with Chapter 63-336,
1963 Fla. Laws. (Chapter 57-380 is discussed
at I.D.5., below, in the context of
regulation of water use. Chapter 63-336 is


\ ]^-~^^ CtA.JJ4u^,








discussed at I.D.6., below, in the context of
expanded regulatory powers over water use
rights.)

The 1972 Act established the current
administrative system of water management,
mandating the creation of regional water
management districts.

With Chapter 72-299 the state
began an era of complete water regulatory
authority. Part IV of Chapter 72-299
authorizes regulation of surface water
management and storage. The capture and
control of diffused surface water is now
subject to regulation and permitting by the
regional water management districts.
Standards have been developed to determine,
in advance, whether one landowner's use will
interfere with another landowner's rights.
In most instances, the administrative system
will protect private rights but, should this
system fail, the common law rights and
remedies remain.


B. Surface Water Rights Navigable
Waterbodies

1. Private rights in navigable
waterbodies, based on ownership of adjoining
lands, are called riparian rights. These
rights include:

a. Reasonable withdrawals
from the waterbody;

b. Exclusive access over
riparian uplands to the waterbody;


1.8









c. Navigation (in common
with public and other riparians and their
invited guests);

d. Unobstructed view of the
water;

e. Swimming;

f. Fishing;

g. Wharfing out;

h. Right to land deposited
by accretion or exposed by reliction.

Board of Trustees of the Internal Improvement
Trust Fund v. Medeira Beach Nominee, Inc.,
272 So2d 209 (2d DCA 1973); Thiesen v. Gulf,
F. & A. Ry., Co., 78 So. 500 (1918),
modifying 78 So. 491 (1917); Padgett v.
Central and Southern Florida Flood Control
District, 178 So2d 900 (2d DCA 1965).

2. Riparian rights arise as a
result of ownership of dry land that includes
some common boundary with a navigable body of
water; the dry land is called "uplands". The
boundary between uplands and the fresh, non-
tidal, navigable water body historically has
been the ordinary high water line; it is the
mean high tide line for salt water or tidal
navigable waters.

3. A riparian owner has the
common law right to drain surface water from
his lands into a natural waterbody, or drain
water from the waterbody, so long as he does


1.9








not divert the natural flow of the water, or
raise or lower the level of the waterbody to
the injury of other uplands owners. Stoer v.
Ocala Mfg., Ice & Packing Co., 24 So2d 579
(Fla. 1946).

4. The public has the right to
use navigable waters for swimming, fishing
and boating. These rights are protected
under the Public Trust Doctrine. See, for
example, Holland v. Pierce Financing and
Construction Co., 157 Fla. 649, 27 So2d 76
(1946); Ellis v. Gerbing, 56 Fla. 603, 47 So.
353 (1908). Although the public has the.
right to use navigable waters, the public
does not have a right to access across
riparian uplands to navigable water bodies.
If all the surrounding uplands are privately
owned and no private owner grants an
easement, the public does not have any means
of getting to the waters to exercise its
rights of navigability, fishing, and
swimming. This is because the shore
(ordinary high water line) is the landward
boundary of publicly owned land.

5. A riparian owner's remedy for
interference with his exclusive right of
access would be an action in trespass. A
riparian owner could bring an action for
injunction if his right to an unobstructed
view of the water is violated.

6. Most of the non-consumptive
riparian rights and the common law remedies
were not replaced or terminated by the
current administrative water management
system. The riparian owner's right to drain
water into the water body is, however,


1.10









subject to regulation under Chapter 373; a
surface water management permit would be
necessary.


C. Surface Water Rights Non-
navigable Waterbodies

1. Owners of uplands that abut
artificial, non-navigable water bodies do not
have riparian rights, where the uplands
owners do not own any portion of the bottom
lands. Publix Super Markets, Inc. v.
Pearson, 315 So2d 98 (2d DCA 1975);
cert. denied, 330 So2d 20 (1976).

2. Rights in non-navigable lakes
arise out of ownership of the bottom land.
Ownership of a portion of the bottomland of
an artificial lake entitles the owner to use
of the waters overlying that portion; there
is no right to use the waters lying above
the portion owned by someone else. Anderson
v. Bell, 433 So2d 1202 (Fla. 1983).

3. There is a presumption that
ownership of the bed of a non-navigable
waterbody goes with the adjacent upland. For
a stream, ownership usually goes to the
middle thread of the current.

4. Ownership of all the uplands
surrounding a natural or artificial non-
navigable water body carries with it
exclusive use of the water body. There are
no other owners of bottom land, and the
public has no common law rights.


1.11








5. Non-consumptive rights in non-
navigable waterbodies were not replaced or
terminated by the administrative system of
water management. Exercise of those rights
may be subject to Chapter 373, which
authorizes regulation of all waters in the
state. The owner of all or a portion of a
non-navigable water body cannot drain water
into the water body without a surface water
management permit.


D. Groundwater Rights

1. There are many similarities
between the common law rights associated with
surface water, and those associated with
groundwater. Both are usufructory rights
to use rather than to own or possess.
Because of water's inherent migratory nature,
neither surface water nor groundwater is
amenable to possession. Groundwater may be
the subject of ownership once it is reduced
to possession. A landowner can own, and
convey, water he has captured; but a
landowner cannot own or convey free flowing
groundwater. See Village of Tequesta v.
Jupiter Inlet Corp., 371 So2d 663 (Fla.
1979), cert. denied 100 S.Ct. 453 (1979).

2. An overlying landowner at
common law had the right to make reasonable
withdrawals of groundwater, subject to equal
rights of neighboring landowners. Cason v.
Florida Power Co., 76 So 535 (Fla. 1917);
Koch v. Wick, 87 So2d 47 (Fla. 1956);
Labruzzo v. Atlantic Dredging & Construction


Co., 54 So2d 673 (Fla. 1971).


)


Mj Y. f ,/ C(/ ocA /o.) 131


1.12








3. Under the common law in
Florida, the relationship of overlying
landowners is similar to the relationship
among riparian owners.

a. Each owner has the right
to use groundwater for beneficial purposes
that have a reasonable relationship to the
use of the overlying land.

b. Unreasonable use of the
overlying land may affect a neighboring
landowner's groundwater rights. For example,
negligent excavation or pouring of concrete
may affect groundwater flows, as in the flow
of a spring. Labruzzo v. Atlantic Dredging &
Constr. Co., 73 So2d 228 (Fla. 1954).

4. Interference with groundwater
rights may be remedied by injunction or
damages.

5. The use of groundwater was not
regulated until 1957, when the Water
Resources Law, Chapter 57-380, 1957 Fla.
Laws, empowered the State Board of
Conservation, consisting of the Governor and
Cabinet, to authorize use of surface water
and groundwater only in excess of average
minimum flow (for a watercourse), level
(lake) or elevation (aquifer), while
protecting existing legal uses against
interference. Chapter 57-380, for the first
time, defined water management district.
This "water resources law" was codified in
Chapter 373, Florida Statutes. The State
Board, by authority of Chapter 373, could
delegate its water use regulatory powers to
any (Chapter 378) flood control or water


1.13









management district or to any water
development or conservation districts it
created. This first small step toward water
use regulation was carefully balanced with
protection for private property rights. The
state water policy declared that "the present
property rights of persons owning land and
exercising existing water rights appertaining
thereto shall be respected and such rights
shall not be restricted without due process
of law nor divested without payment of just
compensation...."

The 1957 Water Resources Law combined
centralized state power with regional and
local districts. The Chapter 378 districts,
the Central and Southern Flood Control
District, and the Chapter 298 districts were
still operating. The 1957 law not only
authorized the State Board of Conservation or
its Division of Water Resources to cooperate
with existing districts, it also authorized a
new type of district: water development and
conservation districts. These districts, to
be created by and to be totally subservient
to the State Board of Conservation, were
intended to govern water use and
conservation.

6. The 1963 legislature amended
Chapter 373. Chapter 63-336, 1963 Fla. Laws,
refined the state's water policy; expanded
regulatory powers; gave greater powers,
including regulatory authority, to local
boards; and continued the trends toward
regional water boards and protection of
existing legal uses.


1.14








This 1963 legislation was notable for its
authorization of expanded regulatory powers,
all of which were granted to the regulatory
districts. The districts were empowered to
"establish rules, regulations, or orders,
affecting the use of water as conditions
warrant, and forbidding the construction of
new diversion facilities or wells, the
initiation of new water uses, or the
modification of any existing uses"; and to
"regulate the use of water within the
affected area by apportioning, limiting or
rotating uses of water, or by preventing
those uses which the local board finds have
ceased to be reasonable or beneficial". This
was the first substantial step toward the
current system of regional boards with full
regulatory powers, and a state agency with
supervisory powers.

7. Chapter 72-299 established the
current administrative program, with one
supervisory state agency authorized to
regulate water use, well construction, and
management and storage of surface waters, and
five regional water management districts with
independent lay boards authorized to accept
delegation from the state agency of its
regulatory powers.

Chapter 72-299 retained some of the earlier
laws' protections for existing users and
private property rights while it eliminated
others. All waters of the state were now
subject to regulation. The specific
statement of the state's policy to protect
existing property rights and water rights was
repealed, and replaced by a grace period in
which existing water uses could be exercised


1.15









without a use permit. Very few guidelines
were prescribed for programs for regulating
consumptive use of water other than requiring
that the proposed use: (a) is a reasonable-
beneficial use (a new term defined in the
act); (b) will not interfere with any
presently existing legal use of water; and
(c) is consistent with the public interest.

The act repealed almost all of the water
management act as it existed after the 1963
amendments, and it repealed the portions of
the law that related to flood control
districts. The administrative system, and
its laws, had finally been consolidated.

8. Common law water use rights, if
unexercised, did not survive the passage of
the 1972 Water Resources Act. Village of
Tequesta v. Jupiter Inlet Corporation, 371
So2d 663 (Fla. 1979). Other common law
rights relative to groundwater did survive
the Act's passage. For example, Pinellas
County, during the last five years or so, has
been using the common law remedies of
injunction and damages for trespass, for
alleged groundwater quality violations (and
surface water drainage interference). The
claims were based on alleged damage to the
Eldridge-Wilde Wellfield near the
Hillsborough County line, on property owned
by the Wildes and leased to the County.
Pinellas County claims that operation of two
borrow pits, one bordering the Wellfield and
the other one-half to three-fourths of a mile
away from the Wellfield, have (or will have)
the effect of dewatering the wells that
produce public supply water. Pinellas County
also alleged that the borrow pits had changed


1.16








the flow of surface water and the natural
drainage pattern, and were contaminating the
aquifer.


II. Current framework for protection of
water resources, and the Sundown Act

A. Water management districts are not
executive agencies of the state. Water
management districts, although created by
specific statutory enactment, are not
adjuncts to executive agencies of the state.
Each district is a separate, independent,
multi-county taxing district, created or
preserved under the Water Resources Act of
1972 as amended in 1973. The first two
districts, one in existence since 1949 and
the other since 1961, were preserved and
continued. Others were created in 1973.
Each district is governed by a nine-member
board, which has authority to employ staff,
to enter into contracts, to.sue and be sued,
to issue orders and to do various other
activities relating to water management.
These water management districts have many
proprietary responsibilities as well as their
regulatory authority.

B. In 1976 Florida passed its first
"REGULATORY SUNSET ACT", calling for review
of legislation relating to state regulation
of professions, occupations, businesses,
industries and other endeavors.

In 1982 the legislature, pursuant to the
REGULATORY SUNSET ACT, repealed, effective
October 1, 1988, the following sections of
the Water Resources Act relating to water


1.17








well contractor licenses and to well
construction permits:

1. F.S. 373.323 Water well
contractor licenses
2. F.S. 373.326 Exemptions
3. F.S. 373.329 License fees
4. F.S. 373.333 Enforcement
5. F.S. 373.336 Penalties
6. F.S. 373.339 Grandfather
provisions
7. F.S. 373.342 Well construction
permits

Well contractor licenses and well
construction permits can be granted by DER
but this authority has been delegated by DER
to the water management districts.

C. In 1982 the Florida Legislature
passed the new Sundown Act, Chapter 82-46,
which provides for periodic legislative
review and repeal of certain advisory boards,
commissions and boards of trustees adjunct to
executive agencies. These advisory boards,
commissions and boards of trustees are to be
repealed on specific dates unless reenacted
following such review. The governing boards
and basin boards of the Water Management
Districts (hereafter WMDs), established by
Florida Statutes Chapter 373, will be
repealed on October 1, 1988, pursuant to the
1982 legislation. However, the state will
remain divided into five WMDs as set out in
F.S. 373.069, since that section is not
repealed.

D. Perhaps the least desirable
consequence of the repeal of the governing


1.18








boards and basin boards of the WMDs is the
loss of the ability to provide ad valorem
funding for water management purposes.

1. The Florida Constitution of
1968, Article VII, Section 9(b), authorizes
the levy of ad valorem taxes for water
management purposes. Article VII, Section
l(a) prohibits the state from levying an ad
valorem tax. F.S. 373.503 implements the
constitutionally authorized ad valorem tax
for water management purposes. That section
provides that only the WMDs created by
Chapter 373 may levy the ad valorem tax
authorized by the Constitution. Any other
unit of government is prevented from levying
such ad valorem tax.

2. In order for the WMDs to levy
the ad valorem tax granted to them they must
act through some agent or body. With the
repeal of the governing and basin boards
there is no such body. DER may exercise any
power the WMDs are authorized to exercise.
However, DER is a state agency and the
Constitution prohibits the state from levying
an ad valorem tax. Chapter 373 also
expressly prohibits DER from exercising the
WMDs' ad valorem taxing power. See F.S.
373.503(2) (a).

3. Additionally, the court in St.
Johns River Water Management District v.
Deseret Ranches, 406 So2d 1132 (5th DCA
1981) indicated that it would not approve of
DER levying the water management ad valorem
tax. In response to an argument that the
WMDs were merely alter egos of DER and
levying an unconstitutional state ad valorem


1.19








tax the court stated:


It should also be noted that
Section 503(2)(a) Florida
Statutes Chapter 373, (1981)
is specific in its admonition
that only WMDs may levy the
millage authorized by the
Constitution for water management
purposes. Therefore, only the
Districts and not the Department,
determine whether, or in what
amounts, such levies will be made.

id, at 1140, footnote 11. This indicates
that if DER determines whether and in what
amount the levy will be, it will be viewed a
a state ad valorem tax.

E. Title to real property or interests
therein is acquired in the name of the WMD.
F.S. 373.139. Repeal of the governing boards
of the WMDs will not affect the status of
title to parcels of property owned by the
WMDs. Property will continue to be held in
the name of the particular WMD.

1. However, no transactions
involving those lands could ever take place
without some action by the legislature. This
is because the provisions allowing for the
sale (F.S. 373.093) and lease of lands or
interest in land (F.S. 373.089) by the
governing boards and therefore the WMDs are
also to be repealed. These interests could
lie dormant for years. This raises the
possibility of ownership reverting to the
previous owner due to the land or interest
therein not being used for the purpose


1.20








acquired.


F. Contracts and agreements are
executed in the name of the WMD. Therefore,
contracts made on behalf of the WMD would
theoretically continue on without
interruption even though the governing board
that executed those contracts on behalf of
the WMD no longer existed.

1. The Sundown Act also repeals
the power of the governing boards of the WMD
(and so the authority of the WMDs) to
contract. Though the WMDs would have no
contractual authority, contracts executed
prior to the repeal, by some mechanism, would
have to be completed. There will have to be
some action by the legislature to complete
the contracts (e.g., make final payment) in
view of the fact that at that point there
will be no person or body with authority to
complete the performance of the contracts.
Otherwise, there may be an impairment of
contracts which is prohibited by Article I
Section 10 of the Florida Constitution.
Neither the authority nor the ability to
perform a contract may be impaired during the
continuance of a contract. Mittendorf v.
Hoy, 151 So 1, 3 (Fla. 1933).

G. Employees are hired on behalf of
and are employed by the WMDs, not the
governing boards. The employment term of
most of the staff is by verbal agreement for
an indefinite term. On October 1, 1988, the
provision authorizing the governing board to
hire employees is repealed. There are no
other provisions enabling the WMDs to employ
personnel. The WMDs will not be able to


1.21









continue the employment of these staff
members. This would undoubtedly lead to many
hundreds of unemployment claims.

There would also be no authority to continue
the employment of employees retained by
written contract for a time certain as there
would be no authority to retain employees or
to contract.

H. The governing boards of the WMDs
have promulgated rules and instituted
permitting systems to implement Chapter 373
that have the force and effect of law.
Florida Livestock Board v. Gladden, 76 So2d
291, 293 (Fla. 1954).

1. These rules of the WMDs will
remain in the Florida Administrative Code
even if the governing boards are Sundowned.
The various permits issued by the WMDs will
also remain valid until their expiration
date. However, there will be no body to
oversee compliance with permit conditions or
the permitting system. Third parties can
seek compliance in furtherance of their own
interests.

2. To repeal these rules action
by the Legislature or the Land and Water
Adjudicatory Committee will be necessary.
See F.S. 373.114. Repeal would be necessary
to avoid conflicts in the event that DER
chose to exercise its own authority under
Parts II, III and IV of Chapter 373 and issue
its own rules and permitting systems.

3. DER could enforce these rules
promulgated by the governing boards rather


1.22









than promulgate its own by acting pursuant to
F.S. 373.129. That section authorizes DER to
enforce rules and regulations issued pursuant
to Chapter 373.

I. Section 1 of Chapter 82-46, Laws of
Florida, requires that the executive agency
to which a Sundowned body is adjunct store
the records of such body. The WMDs were not
created as adjunct to any executive agency.
Therefore, there is no appropriate mechanism
to perform this mandate.

1. The only logical procedure
that could be followed as to this transfer of
records would be to follow F.S. 119.05.
That section provides that whoever has the
custody of any public records shall, at the
expiration of his term of office, deliver to
the Division of Archives, History and Records
Management of the Department of State, all
records, books, writing, letters and
documents kept or received by him in the
transaction of his official business. But,
this does not comply with Chapter 82-46
Section 1, Laws of Florida.

J. Although the governing boards and
basin boards of the WMDs created by Chapter
373 are repealed by the 1982 Act (to take
effect in 1988), there still remained
authority for the continuation of the
governing boards of the Southwest Florida
Water Management District and the South
Florida Water Management District. Chapter
25270, 1949 created the Central and Southern
Florida Flood Control District (CSFFCD).
This District's name was changed to South
Florida Water Management District pursuant to


1.23









Chapter 77-104 Section 113, Laws of Florida.
Chapter 61-691 created the Southwest Florida
Water Management District.

Chapter 61-691 provided that SWFWMD was to
operate under Chapter 378, Florida Statutes,
as amended from time to time. Chapter 378
was ultimately repealed in 1972 by Chapter
72-299 (Chapter 373) so that SWFWMD presently
operates under Chapter 373. Chapter 61-691
created a governing board and basin boards
and provided for ad valorem taxation.

In 1984 the legislature repealed portions of
Chapter 61-691 which created the governing
board and authorized creation of the basin
boards. SWFWMD derived authority for its
activities from Chapter 378 and presently
from Chapter 373. The authority to engage in
these activities is repealed by the Sundown
Act. Consequently, the governing and basin
boards will not continue under Chapter 61-
691. There is no authority to continue
staff, to sue and be sued, etc.

The Central and Southern Florida Flood
Control District was to operate pursuant to
Chapter 25209. See Chapter 25270, Section 4,
1949 Florida Laws. Chapter 25209 was
codified as Chapter 378, Florida Statutes.
Chapter 378 was subsequently repealed by
Chapter 72-299, 1972 Florida Laws (Chapter
373). Therefore, any powers to be exercised
by SoFMWD (CSFFCD) would have to be found in
its enabling legislation (Chapter 25270) or
Chapter 373, as amended from time to time.
Chapter 25270 describes the boundaries of
CSFFCD, authorizes the district to levy ad
valorem taxes and turns over the functions of


1.24








the Okeechobee Flood Control District to
CSFFCD. All other functional powers were
given to the district via Chapters 378 and
373.

As discussed in above sections almost all
express powers given to the WMDs are to be
repealed. The Sundown Act then, leaves
SoFWMD as merely a fictional geographic
entity with no powers except taking and no
way to exercise that power.

K. Even though DER may exercise many
powers authorized to be exercised by a water
management district, it is not authorized to
act as the governing board of a water
management district and most of the necessary
powers have been repealed, effective October
1, 1988. DER lacks the resources necessary
to accomplish Chapter 373 by itself. DER
would not have the funding now available to
WMDs through ad valorem taxation to fund
water management functions. The purpose and
intent of Chapter 373 will not be carried
out.


III. The Future of Water Management

Obviously, the boards will be reenacted,
probably in very similar form to what
currently exists, but the Sundown Act has
provided legislators and others with the
opportunity to examine the water management
districts in great detail.


1.25













"GROUND WATER HYDROLOGY"
THE TERMS YOU NEED TO KNOW


R.S. Murali
Miami









"GROUND WATER HYDROLOGY"


THE TERMS YOU NEED TO KNOW

R. S. MURALI
MIAMI


I. Introduction

An understanding of the broader issues
and site specific technical issues of groundwater
require a fundamental, preliminary understanding
of the terminology used in defining groundwater
and its characteristics. Only then one can
understand and appreciate the issues involved in
groundwater. Failure to understand fully the
meaning of various terms and the technical
differences lead to misunderstanding between
lawyers, engineers and regulatory agencies
resulting in development of inappropriate
policies, improper drafting of laws and rules and
technically unacceptable regulations. The
following outline is intended to bring into focus
some of the terms used in groundwater hydrology,
their meaning and interrelationship.

II. Groundwater and Hydrological cycle

A. Basic issue in groundwater is its
relation to the hydrologic cycle. Inflow to
hydrologic system (Fig. 1) arrives as
precipitation (rainfall/snownelt). Outflow takes
place as streamflow (or runoff) and as
evapotranspiration (evaporation from water by
direct sunlight, soil surfaces and transpiration
from the soils by plants). Precipitation is
delivered as overland flow to channel and as
interfiow and base flow to the subsurface routes
following infiltration into the soil. A
watershed is a combination of both surface and
subsurface drainage along with the soils and
gec r ec formations that underlie the drainage


4.1







Precipitation


--- Equipolential lines Flowline


fig.1


jTopogrophy


fig.3


4.2









system. The subsurface hydrologic processes
control infiltration rates and these rates
influence the timing and spatial distribution of
surface runoff.

B. In addition to the hydrologic
cycle, the issues concerning 'groundwater" are
those of availability (location), quantity and
quality. All these require one to have a
fundamental understanding of the various terms
commonly used or misused in legal, engineering
and regulatory documents and procedural issues.

III. Groundwater Definitions

A. The identification of groundwater
units and the evaluation of interconnection
between groundwater units may require a rigorous
hydrogeologic analysis. Fig. 2 refers to a
hypothetical classification system with specific
terms associated with groundwater.

B. An aquifer is a geologic formation
that can yield significant quantities of water.
In Fig. #2 the middle aquifer is a confined
aquifer with the upper boundary being an
impermeable one while the upper aquifer is
unconfined one with the watertable being the
upper boundary.

C. An aquitard is a confining bed
that retards, but does not prevent the flow of
water to and from an adjacent aquifer. It does
not readily yield water to wells or springs due
to low permeability.

D. Most geologic strata are
classified as either aquifers or aquitards. Most
common aquifers are unconsolidated sands and
gravels and perrmeable sedimentary rocks such as
sandstones and limestones. The most common
.quitards are clays, shales and other crystalline
rocks.


4.3








FCity









nowr

Pwas '


AAO.. .I .:t::




"I, 01

--- --- ---- --- --- ---- --- --- l
-- M.- Allose -- -- -- -- -
- - - - - - -

i u m .~~
- - - - -
- - -- - - -
- - - - - -
--- --- -- --- ---
- - - - -










E. A confined aquifer is an aquifer
that is confined between two aquitards. An
unconfined or water table aquifer is an aquifer
in which the watertable forms the upper boundary.
Confined aquifers occur at depth, unconfined
aquifers near the ground surface. A saturated
lens that is cbunded by a perched watertable is a
special case of an unconfined aquifer. These
lenses are called perched aquifers. In a
confined aquifer, the water level in a well
usually rises above the top of the aquifer. If
it does, the well is called an artesian well and
the aquifer is said to exist under artesian
condition. The water level in a well in an
unconfined aquifer rests at the watertable. For
a confined aquifer, tapped for water supply, the
water level elevation in wells is called a
potentiometric surface indicating the direction
of groundwater flow. Potentiometric surface is
valid only for horizontal flow in horizontal
aquifers and met orly in aquifers with hydraulic
conductivities that are much higher than those in
the associated confining beds. A cone of
depression is a depression in the potentiometric
surface of a body of groundwater that has the
shape of an inverted cone and develops around a
pumped well. Hydraulic conductivity refers to
the capacity of earth materials to transmit
we ter.

F. Fig. 3 shows recharge areas,
discharge areas and groundwater divides:

1. Groundwater divides are
imaginary frperneable boundaries beneath valleys
and ridges across which there is no flow.

2. Groundwater Is delivered from
the recharge area to the discharge area. In a
chargee area the flow director is downward.

3. nfiltration is the entry
iitc the soil of water made available at the


4.5









ground surface together with the associated flow
away from the ground surface within the saturated
zone.

4. Exfiltration is the removal
of water from the soil across the ground surface
together with the associated flow toward the
ground surface within the saturated zone.

G. There are six basic physical
properties of fluid or porous media that should
be understood for one to describe hydraulic
aspects of saturated groundwater flow. The six
are density, viscosity and compressibility for
water and porosity, permeability and
compressibility for the media.

IV. Groundwater contaminants

A. This includes all solutes
introduced into the hydrologic environments as a
result of man's activities regardless of whether
or not the concentration reach levels that cause
significant degradation of water quality.
Pollution refer to situation where contaminant
concentration attain levels that are considered
to be objectionable.

B. Most of the contaminants are
dissolved. Major constituents with permissible
limits are TDS, sulphate and chloride.

C. The contaminants follow the
process of advection, transported by the bulk
mass of the flowing fluid.

D. In a porous fractured aquifer,
receiving vater from a water source, the
contaminant distribution will diffuse into porous
rock and the zone of contamination will be
extended. If the source is discontinued, the
contaminants in the porous matrix will eventually


4.6









diffuse back to the fracture opening as the fresh
water flushes through the fracture net work.

E. Nitrogen (Fig. 4) is the main form
of contaminant identified in the groundwater. It
is dissolved nitrogen in the form of nitrate
(NO ). This is commonly found in agricultural
activities and disposal of sewage on or beneath
the land surface. Dissolved nitrogen also occurs
in the form of ammonium (NH ), ammonia (Ni ),
nitrite (NO2), nitrogen (N2), nitrous oxide (N20)
and organic nitrogen.

F. Trace metals or heavy metals of
special concern with reference to drinking water
are Silver, Cadmium, Chronium, Copper, Mercury,
Iron, Manganese and Zinc. Although these rarely
occur in groundwater at concentrations large
enough to comprise a significant percentage of
the total dissolved solids, depending on the
source and hydrochemical environments these are
likely to be above the limits specified in
drinking water standards. It is difficult to
predict their transport behavior within
groundwater. Absorption and precipitation
reactions cause parts of these elements to move
too slowly to be detected.

G. Trace non metals include carbon,
chlorine, sulfur, nitrogen, flourine, arsenic,
selenium, phosphorus and boron. Various forms of
carbon, chlorine and sulfur occur in abundance in
nature and contaminated groundwaters. Arsenic,
flouride, selenium, boron and phosphate are the
main constituents. Although these are
corntaninants derived from natural sources they do
occur at toxic levels. Dissolved organic
substances are also of concern.


4.7













Precipitation

NO31 Ij


Minerot Plant residue,
fertilizer compost


{fOigitrifictio n re*ducling s) *

fjg. 4 SO-OM -, ,,-,, ,* U"*wr s"u* ="


4.8


P


mmmmm









V. Groundwater Protection


A. Turning from a technical
discussion to a practical plan for groundwater
protection, one's attention is drawn to
groundwater protection guidelines of EPA and the
various states. These guidelines offer different
levels of protection to groundwater based on its
use, value to society and vulnerability to
contamination. EPA has divided groundwater into
three classes Class I drinking water source
which requires extra degree of protection; Class
II current or potential source of drinking
water requiring protection for future and Class
III not a potential source of drinking water
due to levels of contamination that cannot be
easily cleaned up.

B. Under a broad category
"groundwater" different classification schemes
are given. These classification systems are
factored into deciding the level of protection or
remedial measures the resource will be provided
considering the highest beneficial use of the
groundwater in any given area.

C. Many states have developed
groundwater protection approaches that are
tailored to their particular land use and
hydrogeologic condition.

D. Two types of classification
systems can be used "hydrogeologic mapping or
aquifer classification" and "well field
protection zones." (Fig. 5).

E. EPA defines a classification
Review Area (CRA) around the source that should
be e-hvalted. This is followed by information
eatrerirg on public and private wells,
demographics, hydrogeology, wetlands and surface
-vter. Then a decision is made to classify the
azea.


4.9




















L L-WELL Um 00 orm
--FT ROOM W 8UNAR (0 So TM OF Th4M
SOUOANt OF MWS Oh3TAN9ThLuwvmwaLpmomc~um zm (a U.ommm
OOUTM WOlUCTM MU

fig.5


4.19









1. Class I waters are special
drinking waters which are highly vulnerable and
either an irreplaceable source of drinking water
or ecologically vital.

2. Class II water is a current
drinking water supply and further divided into II
A if within the CRA there is either one or more
operating drinking wells or a water supply
reservoir and IIB if the water supply can be
obtained in sufficient quantity to meet the needs
of an average family (i.e. 150 gpg); has TDS of
less than 1000 mgl and can be used without
treatment.

3. Class III Waters have
either TDS concentration of over 1000 mgl or
contamination by natural or man used conditions.
Class III A waters are connected to adjacent
grounrveter of a higher class or with surface
waters and Class III B has a low degree of
connection to the same areas.

VI. Conclusion

Many natural processes and man induced
alterations possess the potential to impact any
groundwater. A major or a number of minor
sources can create a significant impact on the
water resources in terms of quality and quantity.
Without a knowledge of basic groundwater
hydrology it will be difficult to understand the
processes involved and identify the impact.

VIT Feferences

1) R. C. Ward Principles of
hydrologyy, 1976.
2) R. A. Freeze and J. A. Cherry -
Groundwater, 1979.
3) EPA Guidelines for Croundwater
classification, 1986.


4.11














GROUNDWATER PROTECTION: MUST WE
DRINK BOTTLED WATER?


James R.. Brindell
West Palm Beach












I. A. The Local Government
Comprehensive Planning and Land Development
Regulation Act requires a local government
to identify existing and planned water
wells and cones of influence on its land
use maps or map series; F.S.
163.3177(6)(d)l.

B. The LGCPLDRA also requires a
local government to enact land development
regulations to protect potable water
wellfields; F.S. 163.3202(2)(c).

C. These requirements could be
met by a land development regulation which
requires a de novo consideration of
potential impacts on any affected wellfield
in the context of an individual development
order approval. It is suggested, however,
that a systematic approach would produce
more effective, understandable, and
consistent results than an ad hoc process.

II. Threshold considerations for the
development of the wellfield protection
ordinance.

A. Should the focus of the
ordinance be on certain substances or on
types of activities? The use of zoning
districts or standard industrial code
classifications may be too imprecise to use
as the means for identifying the
individuals in the community to be
regulated. Some activities which ought to


5.1


~








be included may be missed and others which
should be excluded may be unnecessarily
included by the use of these generic
definitions.

Focusing on the use,
handling, storage, production and disposal
of certain specific hazardous materials
provides a more direct approach for
regulation. This approach requires the
development of a definition of the
materials to be regulated. The definition
may include a generic definition or
substances list along with incorporation of
certain federal lists oriented toward
hazardous wastes; e.g., 40 CFR, Part 261;
Vol. 52 Federal Register No. 77 (April 22,
1987).

B. Should the ordinance apply to
the use, handling, storage, production, and
disposal of hazardous materials throughout
the jurisdiction or only within certain
zones of influence of particular wells?
The most significant areas are those which
are being influenced by the drawdown of
particular wells. However, hazardous
materials which get into the groundwater
system outside the drawdown areas of
particular wells may, depending upon the
direction of groundwater flow, migrate into
those zones of influence of the wells.

C. Should the emphasis be on
prevention rather than remediation? If
remediation is the goal, then the ordinance
would concentrate on inspection, reporting,
cleanup requirements and penalties. If, on
the other hand, prevention is the
objective, then permitting of existing and
new facilities would be the key component
of the ordinance.


5.2







III. Zones of Influence


A. If a wellfield zone of
influence approach is taken rather than a
jurisdictional boundary approach, then it
is necessary to determine how many zones
will be employed. For example, there may
be one zone of influence covering an entire
cone of depression out to a certain
drawdown point. Or, there may be two or
more zones of influence described in the
travel times of pollutants from a certain
point beyond the wellhead to the well. For
example, 10-, 30-, 210- and 500-day travel
time zones.

B. The zone lines are developed
by the use of mathematical models and
computer programs which generate zone lines
on a map. Experienced consultants and
adequate lead time are necessary to
generate the data, model the wells, and
produce the maps. In this approach, the
maps become the backbone of the ordinance.

C. Multiple travel time zones
are employed to distinguish between
different regulatory categories. For
example, one zone might be a prohibition
zone in which the use, handling, storage,
production and disposal of hazardous
materials is prohibited. Another zone
might be a comprehensive permitting zone
requiring compliance with certain
structural, monitoring, operational, and
financial criteria. Another zone might be
a less extensive regulatory one in which
only certain monitoring and reporting
requirements are employed.

IV. Permit Exemptions

When developing an ordinance, the
need for exemptions from any prohibition of
use, etc. becomes readily apparent. The


5.3







following are some examples. The actual
exemption may be partial or total and may
require a permit.

A. An absolute prohibition
against the use, handling, storage,
production and disposal of hazardous
materials within a specific area is usually
unfeasible. For example, a water utility
whose water source is the object of
protection, uses hazardous materials in the
treatment (e.g., chlorine) and distribution
(fuel for auxiliary power) of the water
resource.

B. Transportation through the
zones of influence of a wellfield cannot be
prohibited in most cases and the vehicles
involved contain hazardous materials,
either in their gas tanks or in the
transporting compartments of the vehicles.

C. Normal office buildings
utilize hazardous materials in everyday
activities such as photocopying and whiting
out typing errors.

D. Pesticides, herbicides, and
fungicides will continue to be used,
especially in recreational areas, and are
comprised of hazardous materials.

E. Requiring permits for
residential activities using hazardous
materials is not very practical given the
use of those materials by virtually all
residents.

F. Retail sales activities which
sell such materials in unopened containers.

G. Normal building construction
activities. Some best management practices
may be prescribed in the ordinance as a
"condition" of the exemption.
5.4








V. Permits and Procedures


A. Construction, operation and
closure permits may be utilized. Although,
the construction and operation permits can
be combined into one permit which
authorizes the construction or retrofitting
and which imposes certain continuous
operational requirements. A closure permit
would be required only where an ordinance
prohibits the continued use, handling,
storage, production or disposal of
hazardous materials.

B. The ordinance ought to spell
out carefully the procedures and criteria
for the issuance and denial of permits,
minimize ambiguity and the need for staff
discretion.

VI. Compensation

A. Ordinances which have a
prohibition zone which applies to existing
as well as new activities, may include a
compensation provision.

B. Providing such a provision is
more likely to be a matter of fairness than
one of compensating for takings created by
such an ordinance. In few instances, would
the ordinance prohibit all reasonable
beneficial use of the property regulated.
Although, a regulated property in an
industrial zoning district may have a
difficult time finding uses which do not
employ hazardous materials.

C. The degree of compensation
can vary dramatically. It may involve as
little as moving expenses or as much as
cost of a new facility and equipment in a
new location, along with business and
goodwill associated with the former site.
5.5








D. One optional strategy to
avoid the payment of compensation is to
evaluate the reconfiguration of the subject
wellfield or well. Reconfiguration can
involve shutting a well down, reducing the
maximum flow from the well, or physically
relocating it so that the subject property
is not within the prohibition zone.

VII. Program Administration

A. The costs of implementing a
wellfield protection ordinance are high.
An annual cost of several hundred thousand
dollars is not unlikely. In addition, many
municipalities establish new wellfields in
unincorporated areas and do not have the
legal authority to establish restrictions
in the areas around those wellfields to
protect them. These two factors tend to
favor the enactment of a county-wide
ordinance.

B. Public education is an
extremely important part of a wellfield
protection ordinance program. It is
essential that those persons regulated by
the ordinance be induced to cooperate and
comply. That is more likely to occur if
they understand the ordinance and provided
some technical assistance by the local
government with respect to compliance.

C. If it appears that there will
be a large number of permit applicants, it
may be preferable to stagger the
implementation of the ordinance so that the
workload can be handled by the staff
assigned to the ordinance. This avoids an
unnecessarily high initial staffing
followed by layoffs. The program requires


5.6







the employment of people with high levels
of expertise, a supply of whom is generally
limited, and the competition for whom is
great.


5.7














DER RESPONSE TO GROUNDWATER
CONTAMINATION



























Biff Craine
Harry Bruns
Tampa



















OUTLINE OF REMARKS

DER RESPONSE TO GROUNDWATER CONTAMINATION

By:

Biff Craine and Harry Bruns

of

Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A.
Tampa, Florida

April 15, 1988



Although in most instances the State of Florida has

promulgated standards defining when pollution has occurred and

what pollution levels will result in an enforcement action by

DER, DER has been less than consistent in providing a

well-defined set of procedures to enforce those standards

consistently statewide. Except in the context of petroleum

contamination, DER has not adopted enforcement procedures in the

form of an administrative rule. Instead, DER has relied upon the

use of a far less formal and less clear enforcement procedure

which relies upon the use of negotiation consent orders to

resolve violations of the state water quality standards.

Traditionally, an enforcement action will be initiated in an

informal fashion. At the outset, DER will inform the alleged

violator that DER has some concern that a violation exists.

Normally, the alleged violator will be informed of this concern

by a warning letter from DER. The issuance of this warning

letter marks the beginning of the informal enforcement process by

:ER. Most alleged violators meet with DER after receiving the


6.1

















letter to discuss the violation and to attempt to resolve the

violation expeditiously. If the violation can be resolved at the

informal level, DER normally requires the alleged violator to

enter into a consent order which defines the duties of the

alleged violator and, in many instances, subjects the alleged

violator to fines and penalties. By requiring the alleged

violator to enter into a consent order, DER insures that if the

alleged violator fails to perform the tasks agreed upon to remedy

the situation, DER can file suit against the violator to enforce

the terms of the consent order. A model consent order for the

clean-up of groundwater contamination is attached.

In the instances in which the situation cannot be resolved

at the informal level, or in which the violation is deemed to be

serious, DER has the authority under Florida Statutes, Chapters

403 and 376, to issue a Notice of Violation and Order for

Corrective Action to the alleged violator. (Samples of both are

attached.) These documents normally set out the factual basis

for the Department action and propose that the alleged violator

perform certain tasks to remedy the alleged violation. It is

important to keep in mind that although the Department is

authorized by the Statute to collect the costs of investigation

and damages to the environment from the violator, the Department

does not have the authority through these documents to collect

civil penalties from the violator without a consent order.

Upon the receipt of the Notice of Violation, it is essential

to respond within 20 days. If the alleged violator fails to


6.2



















respond within 20 days, the alleged violator waives the right to

a hearing and the Orders for Corrective Action become final.

However, so long as the alleged violator either requests an

informal conference, provides a formal answer, or provides some

other responsive pleading within the 20 days, the Orders for

Corrective Action cannot become final without a hearing.

If an informal conference is requested, the DER will meet

with the alleged violator to discuss possible actions to remedy

the alleged violation. Traditionally, at this stage, the

violation will be resolved through the Consent Order process,

just as in the informal enforcement process. Just as in the

informal enforcement process, the Consent Order will define the

tasks which must be performed by the violator to resolve the

situation and will authorize DER to sue for the enforcement of

the Consent Order in the event that the violator fails to perform

those tasks. Also, the Consent Order will normally provide for

penalties which must be paid by the violator. The amount of

these penalties varies dependent upon the severity of the

individual violations, the number of violations, and whether or

not the violator acted in a deliberate or willful manner.

One problem with the enforcement process as it now exists is

the lack of well-defined procedures. Too often, the procedures

may be applied inconsistently and result in less than equitable

results. However, the possibility of inconsistency and inequity

has been addressed in the petroleum contamination context by the

promulgation of Rule 17-70 by DER, which applies to the clean-up


6.3


















of all petroleum contamination cases in the State of Florida.

The promulgation of this Rule reflects a serious effort by DER to

provide well-defined standards and procedures for the clean-up of

contamination, and DER should consider the promulgation of

similar rules to clarify the enforcement procedures in other

areas of contamination.

A summary of the relevant portions of Rule 17-70 are as

follows:

1. In the event of the presence of certain quantities

of free product or concentrations of soil contamination, the

Rule encourages initial remedial actions to prevent the

spread of contamination.

2. A Contamination Assessment Plan ("CAP") must be

submitted to DER prior to the initiation of testing to

insure that the tests will adequately define the extent of

the contamination. After these tests are complete, a

Contamination Assessment Report ("CAR") is submitted to DER

and used as the basis of DER's decision as to the

appropriate response.

3. Depending upon the levels of contamination

discovered in the Contamination Assessment Report, the

violator can propose one of three alternatives: no further

action, monitoring only, or remedial action. The Rule very

clearly defines the criteria used to determine which of the

three proposals is appropriate.


6.4



















4. In the event that remediation is necessary, a

Remedial Action Plan ("RAP") must be submitted to DER before

remediation begins to insure that the clean-up is conducted

in compliance with DER standards.

5. The Rule clearly answers the question "How clean

is clean?" by providing three alternative goals for the

clean-up dependent upon the nature of the contamination and

the quality of the existing groundwater prior to the

contamination.

6. After site rehabilitation has been completed, a

Site Rehabilitation Completion Report must be submitted to

DER a by registered engineer to certify that the

rehabilitation has been completed in compliance with DER

requirements. If DER determines this report to be adequate,

a Site Rehabilitation Completion Order will be issued which

represents the final agency action.

By supplying the alleged violator with clear cut standards

and procedures in the petroleum context, DER has gone a long way

in expediting clean-ups. However, these efforts should not end

with petroleum and should be extended to other areas. It is not

sufficient to simply define the levels of water quality which we

feel are ideally appropriate, instead, the DER must provide a

clear mechanism to the enforcement community by which those

standards can be reached.


HEBBj
4 /1/88


6.5









BEFORE THE STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL REGULATION




STATE OF FLORIDA DEPARTMENT ) IN THE OFFICE OF THE
OF ENVIRONMENTAL REGULATION DISTRICT

Complainant,
) OGC FILE NO.
vs.

I

Respondent.



CONSENT ORDER



Pursuant to the provisions of Sections 403.121i2) and

120.57(3), Florida Statutes, and Florida Administrative Code

Rule 17-103.110, this Conse.t Order is entered into between the

State of Florida Department of Environmental Regulation

("Department") and R ("Respondent") to

reach settlement of certain matters at issue between tne

Department and Respondent.

The Department finds and the Respondent admits tne

following:

1. The Department is the administrative agency of the

State of Florida having the power and duty to control and

prohibit pollution of air and water in accordance with Chapter

403, Florida Statutes, and rules promulgated thereunder. The

Department has jurisdiction over the matters addressed in tnis

Consent Order.

Z. Respondent is a [describe entity e.g. a Florida

Corporation] and is a person within the meaning of Section

403.:31(5), Florida Statutes.

3. (Describe Respondent's manufacturing process and if

possible give a brief description of the contaminants likely to

be w:and. liso include tne address and attach a legal

deszr=;ticn. For example:


6.6








Respondent owns and operates a manufacturing facility on a

2,300 acre site located at 1533 Waste Road, Orlando, Florida. A

legal description of tne site is attached as Exnibit I.

Respondent's operations include electroplating, microplating,

reproduction and photographic laboratory activities. Waste

generated from these processes may consist of spent acids, spent

alkali, spent plating solution, their rinse waters, waste

cutting oils and various organic solvents.)

4. [Describe how and were the contamination enters the

environment. For example:

The waste streams from Respondent's facility are

discharged to an unlined perc:lation pond.

5. [Describe what, if anything, has been found in the

ground water or soils. For example:

During a preliminary contamination assessment on April 17,

1985, the Department found, among other things, the following

contaminants in the following :cncentrations at the facility:

a. benzene ug/1

t. toluene ug/1

6. [Describe other pertinent facts such as: Respondent

is operating without a permit; tne percolation pond discnarges

directly to Harvey Creek, a Class I;I state water; there are two

abandoned drum disposal sites at the facility.]

7. List the violations. For example:

Respondent's activities have resulted in a violation of

Section 403.087, Florida Statutes, whicn pronioits discharges oy

stationary installations reasonably expected to be a source of

pollution, unless authorized =y Department permit or rule;
and.'or

Respondent's activities nave resulted in a violation of

Secti== 403.388, Florida Statutes, whicn prohibits any person

frc. discnarging any waste int= waters of tne state that will

reduce the quality of tne receiving waters oelow the

:lass;.f:ation established f=r tnem.


6.7







an dor

Respondent's activities nave resulted in a violation of

Section 403.161(1)(a), Florida Statutes, which makes it a

violation of Chapter 403 to cause pollution.
and/or

Respondent's activities nave resulted in a violation of

Section 403.161(l)(b), Florida Statutes, which makes it a

violation of Chapter 4C3 to fail to obtain any permit or to

violate or fail to comply wit. any rule or permit issued by tne

Department pursuant to its lawful activity.]

8. The parties have met and discussed this matter on

numerous occasions. As a result of these discussions, the issues

raised herein have been resolved.

THEREFORE, having reached resolution of the matter,

pursuant to Florida Administrative Code Rule 17-103.110(3),

Respondent and the Department mutually agree and it is,

ORDERED:

9. [OPTIONAL-:F APPRP?RIATE] Respondent shall

immediately cease all discnarges from its facility to the ground

and/or surface waters of the state tnat are reasonably expected

to cause a violation of water quality minimum criteria and

standards set forth in Florida Administrative Code Chapter 17-3.

10. [OPTIONAL-:? PRELIMINARY ASSESSMENT NEEDED.]

Respondent shall implement the Preliminary Contamination

Assessment Actions attained hereto as Exhibit II in the manner

and within the time frames specified therein.

11. [OPTIONAL-:F SOTH PCAP AND CAP/RAP SOUGHT] In tne

event the Preliminary Contamination Assessment described i.

Exnibit :: reveals the presence of contaminants in the soil,

sediment, surface water and'cr ground water in violation of water

quality standards or -inimum crr:eria set forth in Florida

Administrative Code Chapter '-3, or reveals tne presence of

contLa.nants which may reasonably be expected to cause pollution

of tne surface and or around water of the state in excess of sucn


6.8









standards or criteria, Respondent snail implement the corrective

actions in the manner and wit.-in t.e time frames set forth in the

document entitled Corrective Actions for Ground Water

Contamination Cases," attached hereto as Exhibit III. Such time

frames snail begin upon notification by the Department that the

presence of contaminants has seen confirmed and that such

corrective actions are necessary.

11. [USE IF ONLY SEEKING A CAP/RAP] Respondent shall

implement corrective actions as set forth in the document

entitled "Corrective Actions for Ground Water Contamination

Cases," attached hereto as Exnibit III, within the time frames

set forth therein.

12. [OPTIONAL-INSERT THIS PARAGRAPH IF SEEKING CIVIL

PENALTIES] Respondent shall make payment to the Department of

S in settlement f!r the matters raised in this

Consent Order. Tne amount snail be made payable to the "State of

Florida Department of Enviror.ental Regulation" and shall be

submitted to [address of district office] within 20 days of the

entry of this Consent Order. For and in consideration of the

complete and timely performance by Respondent of the obligations

agreed to in this Consent Order, the Department heresy waives its

right to seek judicial imposition of additional civil penalties

concerning the issues resolved by this Consent Order.

13. [OPTIONAL-INSERT THIS PARAGRAPH IF NOT SEEKING CIVIL

PENALTIES] For and in consideration of the complete and timely

performance by Respondent of t=e obligations agreed to in this

Consent Order, the Department nereby waives its right to seek

judicial imposition of civil penalties concerning tne issues

involved in tnis Consent Order.

14. :OPTIONAL-INSERT THIS PARAGRAPH IF RESPONDENT

REQUESTS PROCEDURE FOR CHALLENGING DEPARTMENT DETERMINATIONS

A3OUT RESPONDENT'S PROPOSAL] With regard to any determination

made oy the Department regarding Respondent's responses to the

preliminary y n.t=amination Assessment Actions or tne; Corrective

;c.=;:s .ade p-rs-ant =c .nis Consent Order, Respondent may file

6.9








a Petition for Formal or Informal Administrative Hearing
Proceeding, if Respondent objects to the Department's
determination, pursuant to Section 120.57, Florida Statutes, and
Chapters 17-103 and 28-5, Florida Administrative Code.
Respondent shall nave tne burden to establish the
inappropriateness of the Department's determination. The
petition must conform with the requirements of Florida

Administrative Code Rule 28-5.201, and must be received by the
Department's Office of Genera. Counsel, 2600 Blair Stone Road,
Tallahassee, Florida 32301, within 14 days after receipt of
notice from the Department of any determination Respondent wishes
to challenge. Failure to file a petition within this time period
shall constitute a waiver by Respondent of its right to request
an administrative proceeding under Section 120.57, Florida
Statutes. The Department's determination, upon expiration of the
14 day time period if no petition is filed, or the Department's
Final Order as a result of the filing of a petition, shall be
incorporated by reference into tnis Consent Order and made a part
of it. All other aspe::s of t.is Consent Order snall remain in
full force and effect at all times. If Respondent seeks an
administrative proceeding pursuant to this paragraph, the
Department may file suit against Respondent in lieu of or in
addition to holding the administrative proceeding to obtain
judicial resolution of all the issues unresolved at the time of
the request for administrative proceeding.
14. [OPTIONAL--SE THIS NOTICE IF YOU DON'T WANT TO

REQUIRE PUBLICATION. THE CONSENT ORDER MUST EITHER CONTAIN THE
NOTICE IN THIS PARAGRAPH OR TEE PARAGRAPH REQUIRING PUBLIC
NOTICE.] Persons not parties to this Consent Order whose
substantial interests are affected by tnis Consent Order have a
rignt, pursuant to Section 12S.57, Florida Statutes, to petition
for an administrative determination hearing) on it. The
petition must conform t== the requirements of Chapter 17-103 and
28-5, Florida Administrative ::de, and must oe filed (received'
:. tne Department's Off;:e of Seneral Counsel, 2600 3lair Stone
6.10


L


I _









Road, Tallanassee, Florida 3:301, within 14 days of receic

this notice. Failure to file petition within tne 14 days

constitutes a waiver of any rignt such person has to an

administrative determination :hearing) pursuant to Sectio

120.57, Florida Statutes.

15. [OPTIONAL-USE TH:S NOTICE IF YOU WANT TO REQ'

PUBLICATION. THE CONSENT ORDER MUST EITHER CONTAIN THIS

PARAGRAPH OR THE NOTICE PARAGRAPH ABOVE]

Respondent shall publish the following notice in

newspaper of general circulation in County,

The notice shall be published one time only within 14 e

execution of the Consent Order by tne Department.


STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULAR
NOTICE OF PROPOSED AGENCY ACTION


The Department of Environmental Regulation
gives notice of agency action of entering
into a Consent Order with

pursuant to Rule :--103.11003), Florida
Administrative Code. The Consent Order
addresses




The Consent Order is available for public
inspection during normal business nours, e
a.m. to 5:00 p.m., Monday through Friday,
except legal holidays, at the Department c
Environmental Regulation,




Persons whose substantial interests
are affected by the above proposed agency,
action have a right, pursuant to Section
120.57, F.S., to petition for an
administrative determination (hearing) o
tne proposed action. The Petition must
conform to tne requirements of Chapter
17-103 and 28-5, FAC, and must be filed
(received) with the Department's Office
General Counsel, 2600 Blair Stone Road,
Tallahassee, Florida 32301, within
14 days of publication of this notice.
Failure to file a petition within
tne 14 days constitutes a waiver of anj
r9gnt such person nas to an administra*
determination (hear-ngc pursuant to
Section 12C.57, F.S.


6.11










If a petition is filed, the
administrative hearing process is des4qned
to formulate agency action. Accordingly,
the Department's final action may be
different from the proposed agency action.
Persons whose substantial interests will
be affected by any decision of the
Department nave the right to intervene in
the proceeding. A petition for
intervention must be filed pursuant to
Model Rule 28-5.207, FAC, at least five
days before the final hearing and be filed
with the Hearing Officer if one has been
assigned at the Division of Administrative
Hearings, Department of Administration,
2009 Apalachee Parkway, Tallahassee,
Florida 32301. If no Hearing Officer has
been assigned, the petition is to be filed
with the Department's Office of General
Counsel, 2600 Blair Stone Road,
Tallahassee, Florida 32301. Failure to
petition to intervene within the allowed
time frame constitutes a waiver of any
right such person has to an administrative
determination (nearing) under Section
120.57, F.S.

16. [STANDARDP Respondent waives its right to an

administrative hearing on the terms of this Consent Order under

Section 120.57, Florida Statutes, and its right to appeal this

Consent Order pursuant to Section 120.68, Florida Statutes.

[STANDARD) Nothing nerein snall oe construed to

limit tne authority of the Department to undertake any action

against any settling Respondent in response to or to recover the

costs of responding to conditions at or from the site which may

present an imminent hazard to the public health, welfare or the

environment if:

A. The conditions were previously unknown to or

undetailed by the Department;

S. The conditions result from the implementation of the

requirements of this Consent Order;

C. Other previously unknown facts arise or are discovered

after tne entry of this Consent Order.






W,'CC :466.6

6.12








18. [STANDARD] The Respondent shall provide within a

reasonable time at its expense a permanent safe drinking water

supply meeting all drinking water standards set forth in Florida

Administrative Code Chapter 17-22 to replace any potable water

well that is shown by chemical and hydrogeologic analyses to be

contaminated ny the Respondent's operations.

19. [STANDARD] Entry of this Consent Order does not

relieve Respondent of tie need to comply with the applicable

federal, state or local laws, regulations, or ordinances.

20. [STANDARD] The terms and conditions set forth in

this Consent Order may be enforced in a court of competent

jurisdiction pursuant to Sections 120.69 and 403.121, Florida

Statutes. Failure to comply with the terms of this Consent Order

shall constitute a violation cf Section 403.161(l)(b), Florida

Statutes.

21. [STANDARD] Respondent is fully aware that a

violation of the terms of this Consent Order may subject

Respondent to judiciall imposition of damages, civil penalties up

to [INSERT S5C,300 IF ITS A HAZARDOUS WASTE CASE AND 510,0O IF

ITS ANY OTHER K:ND OF CASE] per offense and criminal penalties.

22. [STANDARD] Respondent snail allow all authorized

representatives of the Department access to tne property at

reasonable times for the purpose of determining compliance with

the terms of this Consent Order and tne rules of the Department.

23. The Department hereby expressly reserves the right to

initiate appropriate legal action to prevent or prohibit future

violations of applicable statutes or the rules promulgated

thereunder not covered by the terms of this Consent Order.

24. [STANDARD] No modification of the terms of tnis

Consent Order snail be effective until reduced to writing and

executed oy 0c1. the Respondent and the Department.


6.13









25. [STANDARD] All reports, plans, and data required by

this Consent Order to be suomittqd to the Department should be

seat to [specify positions, not names e.g., the Environmental

Manager, Enforcement Section and include addressess] and to the

Bureau of Operations, 2600 Blair Stone Road, Tallahassee, Florida

32301.

26. [STANDARD] This Consent Order is final agency action

of the Department pursuant to Section 120.69, Florida Statutes

and Florida Administrative Code Rule 17-103.110(3), and it is

final and effective on the date filed with the Clerk of the

Department unless a Petition for Administrative Hearing is filed

in accordance witn Chapter 120, Florida Statutes. Upon the

timely filing of a petition this Consent Order will not be

effective until further order of the Department.






FOR THE RESPONDENT:


DATE


NAME
Title


DONE AND ORDERED this _

in Florida.


day of _, 198_




STATE OF FLORIDA DEPARTMENT
OF ENVIRONMENTAL REGULATION




District Manager


~W'/CO '0486.8


6.14


r








BEFORE THE STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL REGULATION



STATE OF FLORIDA DEPARTMENT IN THE OFFICE OF THE
OF ENVIRONMENTAL REGULATION, DISTRICT

Complainant,

v.
) OGC FILE NO.: I


Respondent.



NOTICE OF VIOLATION AND
ORDERS FOR CORRECTIVE ACTION

TO: I

Certified Mail Number H


Pursuant to the authority Section 403.121(2), Florida

Statutes (F.S.), and Florida Administrative Code (F.A.C.) Rule

17-103.110, the State of Florida Department of Environmental

Regulation ("Department") gives notice to I ("Respondent") of the

following findings of fact and conclusions of law with respect to

violations of Chapter 403, F.S.:


FINDINGS OF FACT
PARAGRAPHS APPLICABLE TO ALL COUNTS

1. The Department is the administrative agency of the

State of Florida which has the authority to administer and

enforce the provisions of Chapter 403, F.S., and rules

promulgated thereunder in F.A.C. Title 17.

2. Respondent is a I that owns and operates a I facility

on property located at I. A copy of the warranty deed which

identifies the specific location is attached hereto as Exhibit



3. The nature of Respondent's operations is described in a

Hazardous Waste Inspection Report dated a copy of

wnich is attached and incorporated as ExhoiD I;.


6.15







:COUNT I

4. Respondent has violated rules regarding hazardous waste

management contained in F.A.C. Chapter 17-30 as set forth in the

"Sumary of Violations" section of Exhibit II.


C-':NT II

5. (Discuss facts setting forth ground water allegations.

E.g, prior to I (date of inspection) Respondent disposed of

hazardous waste (or solid waste) by I (insert appropriate facts

such as (a) by dumping waste onto the ground adjacent to the

plant building, (b) by discharging the waste into the ground

water through a septic tank at the facility or (c) by spilling

waste onto the ground during Respondent's operations.) If (b) is

chosen add: The septic tank is a Class IV underground injection

well as defined in F.A.C. Rules 17-28.11(3)(c) and

17-28.13(l)(d).]

6. Respondent's activities as described in paragraph five

constitute operation of a stationary installation reasonably

expected to be a source of pollution. Respondent has never

applied for nor received a permit from the Department for the

disposal of waste or discharge to the ground water.


COUNT III

7. The Department has incurred expenses to date while

investigating this matter in an amount not less than S



CONCLUSIONS OF LAW

The Department has evaluated the Findings of Fact with

regard to the requirements of Chapter 403, Parts I and IV, F.S.;

F.A.C. Chapter 17-30; 40 Code of Federal Regulations (C.F.R.)

260.10: and 40 C.F.R. Parts 261 through 265. Based on the

foregoing facts the Department nas made the following conclusions

of law:

8. Respondent is a person within the meaning of Sections

403.031 and 403.3. F.S. 6.16








9. The provisions of 40 C.F.R. S260.10 and 40 C.F.R. Parts

261 through 265 are adopted by reference in F.A.C. Rules

17-30.02, 17-30.03, 17-30.16, 17-30.17, and 17-30.18.

10. Respondent's operation is a hazardous waste facility as

defined in Section 403.703(22), F.S., F.A.C. Rule 17-30.02, and

40 C.F.R. S260.10.

11. The facts related in Count I and II constitute a

violation of Section 403.727, F.S., which makes it a violation of

the Florida Resource Recovery and Management Act for a hazardous

waste generator, transporter, or facility owner or operator to

fail to comply with the provisions of the Act or Department rules

concerning hazardous waste management.

12. The facts described .n Count II constitute a violation

of Section 403.087, F.S., which. provides that no stationary

installation which will reasonably be expected to be a source of

air or water pollution snall be operated or maintained without an

appropriate Department permit.

13. The facts described in Count II constitute a violation

of [choose provision applicable to facts set forth in paragraph 5

such as (a) Section 403.708(1), F.S., which prohibits the

placement or deposit of any solid waste in or on the land or

waters located in the state except in a manner approved by the

Department, (b) F.A.C. Rule 17-28.42 which prohibits the

construction or operation of a Class IV injection well, (c)

Section 403.722, F.S., wnich prohibits the construction,

operation or closure of a hazardous waste facility without a

permit; and/or (d) F.A.C. Rule 17-4.245(2), which prohibits any

facility from discharging into ground water any contaminant that

causes a violation in water quality standards or minimum

criterium for the receiving ground water, except within a zone of

discharge established by permit or rule. :Note that ;a) and (b)

may both be used wnen the waste is hazardous, and that (d) should

e used unless only a PCP is zeing requested.'

14. The costs and expenses related in Ccunt ::: are

reasonable costs and expenses incurred by tne State wnile

6.17






investigating this matter, wn.:n are recoveraoie pursuant to

Section 403.141(1) F.S.


ORDERS FOR :3RRECTIVE ACTION

The Department has alleged that the activities related in

the Findings of Fact constitute violations of Florida law. The

Orders for Corrective Action state what you, Respondent, must do

in order to correct and redress the violations alleged in this

Notice.

The Department will adopt the Orders for Corrective Action

as part of its Final Order in this case unless Respondent files a

timely petition for a formal .nearing or informal proceeding,

pursuant to Section 403.121, F.S., and F.A.C. Rule 17-103.110.

(See Notice of Rights.) If Respondent fails to comply with the

corrective actions ordered by the Final Order, the Department is

authorized to file suit seeking Dudicial enforcement of the

Department's order pursuant tc Sections 120.69 and 403.131, F.S.

Pursuant to the authority of Sections 403.061(8) and

403.121, F.S., and F.A.C. Rule 1:-103.110, the Department

proposes to adopt in its Final Order in this case the following

specific corrective actions which will redress the alleged

violations:

15. Respondent shall forthwith comply with all Department

rules regarding hazardous waste management. Within 30 days of

the date of receipt of these Orders or such other time as is

stated in the Recommended Corrective Actions Section of Exhibit

II, Respondent shall correct and redress all violations listed in

the Summary of violations in the manner required by the

Recommended Corrective Actions in Exhibit II, and shall comply

with all applicable sections 1= F.A.C. Chapter 17-30 and 40

^.F.R. Parts 260-265

16. Within 45 days, Respondent shall submit to the

Department a deta.-ed itemized report describ-.g and certifying

compliance with paragraph 15 cf this Notice.




6.18






,7. Within 33 days, Respondent shall make payment to tne

Department for costs and expenses in the amount of

Payment shall be made by certified check or money order payable

to the "State of Florida Department of Environmental Regulation"

and shall be sent to K.

18. Respondent shall immediately cease all discharges from

its facility to the ground and/or surface waters of the state

where such discharges are reasonably likely to cause a violation

of water quality minimum criteria and standards as set forth in

F.A.C. Chapter 17-3.

19. Respondent shall implement the study as set forth in

the Preliminary Contamination Assessment Actions attached hereto

as Exhibit III in the manner and within the time frames specified

therein.

20. In the event the Preliminary Contamination Assessment

described in Exhibit III reveals the presence of contaminants in

the soil, sediment, surface water and/or ground water in

violation of water quality standards minimum criteria set forth

in F.A.C. Chapter 17-3; or reveals the presence of contaminants

which may reasonably be expected to cause pollution of the

surface and/or ground water of the State in excess of such

standards or criteria, Respondent shall implement the corrective

actions in the manner and within the time frames set forth in the

document entitled "Corrective Actions for Ground Water

Contamination Cases" attached as Exhibit IV. Such time frames

shall begin upon notification by the Department that the presence

of contaminants has been confirmed and that such corrective

actions are necessary.

[or, if evidence of contamination has already been

established delete paragraphs 18 and 19 and add the

following:

18. Respondent shall implement the corrective actions as

set fortn in the document entitled 'Corrective Actions for Ground

Water Contamination Cases,* attached hereto as Exhibit III within

mte time frames set fortn tnerein.


6.19






NOTICE OF RIGHTS

1. Respondent has ne right to a formal administrative
hearing pursuant to Section 120.57(1), F.S., if Respondent
disputes issues of material fact raised by this Notice of
Violation and Orders for Corrective Action ("Notice"). At a
formal hearing, Respondent will have the opportunity to be
represented by counsel, to present evidence and argument on all
issues involved, to conduct cross-examination and submit rebuttal
evidence, to submit proposed findings of fact and orders, and to
file exceptions to any order or hearing officer's recommended
order.
2. Respondent has the right to an informal administrative
proceeding pursuant to Sectio. 120.57(2), F.S., if Respondent
does not dispute issues of material fact raised by this Notice.
If an informal proceeding is held, Respondent will have the
opportunity to be represented by counsel, to present to the
agency written or oral evidence in opposition to the Department's
proposed action, or to present a written statement challenging
the grounds upon which the Department is justifying its proposed
action.
3. Respondent may request an informal conference with the
Department pursuant to F.A.C. Rule 17-103.090 in order to resolve
this matter promptly and amicably. Respondent's rights will not
be adjudicated at an informal conference, and the right to a
formal hearing or informal proceeding will not be affected by
requesting or participating in an informal conference.
4. If Respondent desires a formal hearing or an informal
proceeding. Respondent must file a written responsive pleading
entitled "Petition for Administrative Proceeding" within 20 days
of receipt of this Notice or within ten days of any timely
requested informal conference held pursuant to paragraph 5.
below. The petition must be in the form required by F.A.C.
Chapter 1"-1:3 and by F.A.C. Rule 28-5.201. A petition is filed
wnen it is received by tne Department's Office of General
Counsel. 26ZC Blair Stone Road, Tallahassee, Florida 32301-8241.

6.20



i








A petition must specifically request a formal hearing or an

informal proceeding, it must admit or deny each Finding of Fact

of this Notice, and it must state any defenses upon which

Respondent relies. If Respondent lacks knowledge of a particular

allegation, Respondent must so state, and that statement will

operate as a denial.

5. If Respondent desires an informal conference,

Respondent must file a written "Request for Informal Conference"

within ten days of receipt of this Notice. The request must be

made to the person indicated on the last page of this Notice.

The request is filed when it is received by the office of the

person indicated on the last page of this Notice. If no

resolution of this matter results from the informal conference,

Respondent has the right to file a petition for a formal hearing

or informal proceeding within ten days of the date the conference

is held.

6. Respondent will waive the right to a formal hearing or

an informal proceeding if a petition is not filed with the

Department within 20 days of receipt of this Notice or within ten

days of the date of an informal conference if one is held. These

time limits may be varied only by written consent of the

Department.

7. The allegations of this Notice together with the Orders

for Corrective Action will be adopted by the Department in a

Final Order if Respondent fails to timely file a petition for a

formal hearing or informal proceeding, pursuant to Section

403.121, F.S., and F.A.C. Rule 17-103.110. A Final Order will

constitute a full and final adjudication of the matters alleged

in this Notice.

8. If Respondent fails to comply with the Final Order, the

Department is authorized to file suit in circuit court seeking a

mandatory :n:unccton to compel compliance with the Order,

pursuant to Sect=cns 12C.69, 403.131, and 403.'27, F.S. The

Department may also seec to recover damages, all costs of

.t:ica:tn includ-ng reasonable attorney's fees and expert


6.21






witness fees, and civil penal:;es of not more than S50,000 per

day for each day tnat Respondent nas failed to comply with the

Final Order.

9. This matter may be resolved if the Department and

Respondent enter into a Consent Order, in accordance with F.A.C.

Rule 17-103.110(3), upon such terms and conditions as may be

mutually agreeable. In this regard, the Department has entered

into an agreement with the United States Environmental Protection

Agency ("EPA') regarding cases involving violations of hazardous

waste rules. The agreement obligates the Department either to

seek civil penalties in such cases or to refer them to EPA to

collect penalties. The agreement requires the penalties to be

computed on the basis of the EPA Resource Conservation and

Recovery Act Civil Penalty Policy dated May 8, 1984, a copy of

which is available upon request from the Department. Any

settlement between the Department and the Respondent concerning

the violations set forth nerein must include the payment of

penalties consistent with this Policy. Should the parties not be

able to settle this action, the Department may voluntarily

dismiss this Notice and seek :-dicial imposition of penalties in

circuit court, file a separate and independent action in court

for imposition of civil penalties, or refer the violation to

EPA.

10. The Department is not barred by the issuance of this

Notice from maintaining an independent action in circuit court

with respect to the alleged violations. If such action is

warranted, the Department may seek injunctive relief, damages,

civil penalties of not more than 550,000 per day, and all costs

of litigation.

1. Copies of Department rules referenced in this Notice

may be examined at any Department Office or may be obtained by


6.22












.written request to the person listed on the last page of this
Notice.

DATED this day of 19



STATE OF FLORIDA DEPARTMENT
OF ENVIRONMENTAL REGULATION







Copies furnished to:
Office of General Counsel



A petition for hearing must be filed with:



Office of General Counsel

State of Florida Departmnet

Of Environmental Regulation

2600 Blair Stone Road

Tallahassee, Florida 32301-8241

Telephone: 904/488-9730



A request for an informal conference must be made to:


*


6.23














DER'S GROUND WATER RULE


Cynthia K. Christen
Tallahassee








DER'S GROUND WATER RULE


Cynthia K. Christen

I. What Is Ground Water?

A. Ground water is included as
"waters" by statute. "Underground waters
include, but are not limited to, all
underground waters passing through pores of
rock or soils or flowing through in
channels, whether manmade or natural...."
F.S. 403.031(12).

B. Ground water is "water beneath the
surface of the ground within a zone of
saturation, whether or not flowing through
known and definite channels." Rule
17-3.021(14). Fla. Admin. Code.

1. Although water from beneath
the ground can flow into a lake, river, or
dug hole, once the water seeps above the
zone of saturation it is no longer ground
water by definition.

2. Ground water standards apply
at and below the zone of saturation.

II. Classes of Ground Water

A. Since January 1, 1983, ground water
has been divided into 4 classes depending
on amount of total dissolved solids which
determines usage, and its geological
location.

1. Class G-I
a. Designated for potable
water use and must have less than 3000 mg/l








total dissolved solids ("TDS").


b. Single Source-although
still an existing rule, the proposed
wellhead protection G-I amendments, when
effective, will substantially change this
classification. The single source concept
does exist for Class F-I (see I 5 below).

c. Wellhead Protection-
Proposed Rules 17-3.021. .403 and
17-4.245(2)(a)(b). and (3). (See IV for
details).

(1) Creates zones of protection
around major public community
drinking water wells which
withdraw water from unconfined or
leaky confined aquifers.

(2) Ground water must be
reclassified to Class G-I by
Environmental Regulation
Commission ("ERC")

2. Class G-II

a. Designated for potable water use
and must have less than 10.000 mg/l TDS.

b. Currently this is the ground water
that supplies about 92% of Florida's
drinking water.

3. Class G-III

a. In an unconfined aquifer designated
for non-potable water use, and has 10.000
mg/l or greater of TDS.







b. There is a provision that allows a
Class G-II ground water with 3000-10,000
mg/l TDS to be reclassified as Class G-III
by the ERC if it has no reasonable
potential as a future source of drinking
water. This has never been done.

c. Also, G-II ground water with
3000-10.000 TDS can be designated by DER as
an exempted aquifer pursuant to Rule
17-28.130(3), Fla. Admin. Code.
(Underground Injection Control)

(1) need notice and opportunity
for hearing.

(2) is never expected to be used
for drinking water.

(3) recovery of water for
drinking purposes is economically
or technologically impractical.

(4) such designation is not final
until approved by EPA. as part of
state UIC program.

4. Class G-IV

a. In a confined aquifer designated
for non-potable use. and has 10.000 mg/l
TDS or greater.

b. Used for injection of industrial
and domestic waste through UIC permit
program.

5. Class F-I

a. Applies only to small northeast
portion of Flagler County, on island north


7.3








to north line of Sections 8 and 39,
Township 11 South; and south to northern
extension of the mean high water level of
Fox's Cut.

b. Came about as result of Petition
for Rulemaking to reclassify ground water
as a single source aquifer.

(1) ERC declined to approve
proposed rule for adoption and
Petitioner filed direct appeal to
1st DCA.

(2) 1st DCA ordered that DER
adopt a rule designating the area
a G-I. See Schatz v.
Environmental Regulation
Commission. 500 So.2d 167 (Fla.
1st DCA 1986).

(3) Because of the new
wellfield protection G-I rule
being drafted, another name (F-I)
was given to this classification.

c. Protection of ground water is
identical to that for single source
aquifers. See Rule 17-4.245 (1)(2)(a),
(b), (5), (6) and (7), Fla. Admin. Code.

(1) No zone of discharge ("ZOD")
except for:

(a) Domestic wastewater and
stormwater sites authorized
by Department permit or rule
shall have ZODs extending no
more than 100' from site
boundary or to installation's







property boundary, whichever is less,
unless a smaller ZOD is necessary to
protect the designated use of adjacent
waters outside the ZOD.

(b) Other discharge sites
may be granted a ZOD the same
size as in (a) if the
discharges are as clean as
the domestic wastes in
chemical, physical, and
microbiological quality
treated to the degree
required in Rule
17-6.080(3)(a).

(c) Installations authorized
to discharge to ground water
at the time of
reclassification to Class F-I
(Feb. 24. 1987) shall meet
the same requirements as
existing installations in
G-II ground water as
described in Rule
17-4.245(4)(b). However, if
an existing installation
increases its discharge
volume or changes the
composition of the waste
stream above permitted levels
of F-I, the increased or
changed waste stream shall
meet the all provisions
applicable to new
installations discharging to
F-I ground water.

(2) The water quality standards
which apply are the minimum


7.5







criteria, and the primary and
secondary drinking water
regulations. See Rules 17-3.402
and 17-3.404, Fla. Admin. Code.

III. Zone Of Discharge ("ZOD")

A. A ZOD is defined in Rule
17-3.021(31). as "a volume underlying or
surrounding the site and extending to the
base of a specially designated aquifer or
aquifers, within which an opportunity for
the treatment, mixture, or dispersion of
wastes into the receiving ground water is
afforded." (It is a 3 dimensional mixing
zone concept for ground water.)

B. For Classes G-I, G-II and G-III
there is no ZOD for the minimum criteria
("free-froms"). Rule 17-3.402.

C. ZOD for primary and secondary
drinking water parameters in Class G-II
ground water.

1. Installations legally
discharging on or before July 1. 1982, are
existing installations and may have ZOD to
property boundary.

2. Other installations may have
ZOD of 100' from the site boundary or to
property boundary, whichever is less.

3. The vertical and horizontal
extent of a ZOD should be stated in permit.






7.6


I








4. Agricultural fields, ditches
and canals, and livestock lagoons exempted
from permitting under Rule 17-6.300 and
stormwater facilities have ZOD without need
for obtaining a permit. The size is 100'
from site or to property boundary whichever
is less, unless a more appropriate ZOD is
identified in a permit. Rule
17-4.245(4)(c), Fla. Admin. Code.

5. Rule amendment of February 11,
1988, exempts existing installations from
meeting secondary standards unless DER
determines that the installation's
discharge is likely to cause a violation in
ground water used or identified for future
use as drinking water. This determination
must be in a permit issued after February
1. 1988. However, regardless of any
determination, an installation is
prohibited from causing a violation at any
private or public water supply well outside
the ZOD. Rule 17-4.245 (1)(d), (8). Fla.
Admin, Code (1988).

D. ZOD for G-I ground water

1. Once an area has been
reclassified as G-I, no new
dischargers(except stormwater) will be
allowed to have a ZOD.

2. Non-new discharges will be
allowed a ZOD as they would under G-II.

E. Class G-III and G-IV ground water
discharges do not need a ZOD.







F. ZOD modifications


1. The DER can modify a ZOD as
part of a permit modification if a smaller
ZOD is more appropriate because of
hydrogeology, monitoring data results, etc.

2. A permitted may petition for
modification of a ZOD. Rule 17-4.245
(5)(b). Fla. Admin. Code. If ZOD petition
is for extension beyond property boundary,
procedures in Rule 17-4.245(5)(d) must be
followed.

IV. Monitoring Requirements

A. The purpose for monitoring ground
water is to ensure that the permitting of
ZOD's, or exemptions therefrom, will not
cause a violation of ground water
standards. Monitoring is intended to allow
a predictive evaluation of the movement and
composition of the discharge plume. Rule
17-4.245(6), Fla. Admin. Code.

B. All installations discharging to
ground water which are required to obtain a
permit from DER for said discharge are
required to develop and implement an
approved monitoring plan. EXCEPT:

1. Domestic sewage treatment
plants with less than 100.000 gpd design
capacity.

2. Stormwater facilities.

3. Agricultural fields, ditches
and canals.


7.8







4. Livestock waste lagoons
exempted from permitting under Rule
17-6.300. (See Rule 17-4.245(6)(j).

5. For exemptions 1.-4..
discharges must present no potential hazard
to human health or the environment, or not
endanger a source of drinking water and
they may not discharge directly to ground
water (through a sinkhole or well).

6. For wastewater ponds, cooling
ponds, or other discharge to waters, which
meet minimum criteria and other applicable
standards for ground water and contiguous
surface waters, DER may require
determination of the background water
quality and regular sampling of the quality
of the discharge prior to contact with
ground water.

C. Plan contents See Rule
17-4.245(6)(d).

D. Plan Approval

1. For a new permit, the
monitoring plan must be included with the
application. It is considered part of the
permit application with all the permitting
clock and Chapter 120, F.S. requirements.
Upon approval it is incorporated as a
special conditions) to the permit.

2. For existing permits currently
without a required monitoring plan, it will
be a permit modification which follows
Chapter 17-4. F.A.C. provisions.








V. The Wellfield Protection G-I Rule

A. The purpose of the new rule is to
protect ground water from contamination
which is used or potentially used as
drinking water. It is preventive rather
than reactive.

B. The prevention will be accomplished
by establishing zones of protection around
wells serving major community public water
supplies, in which restrictions for the
discharge activities apply.

1. 200' Zone of Protection (ZOP).

2. 5 year travel time radius
based on formula in rule.

3. Rulemaking for this will
require at least 2 workshops in each area
(region, county, or whatever).

4. Approval of ZOPs by ERC at
public hearing.

C. Effect on discharges to ground
water once ZOPs are adopted.

1. No ZOD for new discharges.
except stormwater.

2. No new sanitary landfills in
ZOPs.

3. Within 200' ZOP, no new
discharges from sewage treatment plants.
stormwater facilities, industrial waste.
agricultural activities requiring a DER


7.10








permit, and no new underground storage
tanks, or underground transportation pipes
for pollutants or contaminants.

4. Allowable new discharges to
ground water within 5 year ZOP:

(a) Industrial wastewater
not containing hazardous
constituents listed in DER
publication, G-I Modified
Hazardous Constituents List,
in concentrations above
natural background.

(b) Treated domestic waste

(1) Plant must meet
Class I reliability or
be designed so that
effluent will meet
minimum criteria, and
primary and secondary
standards prior to
contact with ground
water or be reduced
through root uptake so
that below the root zone
those standards are met.

(2) The plant must have
a pre-treatment program
for industrial
wastewater.

(3) There must be daily
monitoring. (This is
not ground water
monitoring.)


7.11








(4) 24 hour a day
attendance by a
certified wastewater
operator of class
required by Chapter
17-16, and under
supervision of Class A
operator.

(5) Plants of less than
100,000 gpd permitted
capacity shall be
staffed with the class
operator required under
Chapter 17-16, and be
inspected twice daily,
between 5-10 a.m., and
4-9 pm.

(6) DER may allow for
exception of (1)-(5)
upon a demonstration,
using acceptable
engineering practices,
that an alternative
design or program
maintenance will achieve
equivalent water quality
protection.

(7) Only slow-rate
infiltration for land
application allowed,
except for the use of
wetlands.

(c) Stormwater allowed,
except:

(1) New industrial
facilities as listed in the


7.12




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