STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ALAN R. BEHRENS, )
)
Petitioner, )
)
vs. ) Case No. 92-0953
)
CONSOLIDATED MINERALS, INC., )
and SOUTHWEST FLORIDA WATER )
MANAGEMENT DISTRICT, )
)
Respondents. )
) CHARLOTTE COUNTY, )
)
Petitioner, )
)
vs. ) CASE NO. 92-0954
)
CONSOLIDATED MINERALS, INC., )
and SOUTHWEST FLORIDA WATER )
MANAGEMENT DISTRICT, )
)
Respondents. )
) CITY OF NORTH PORT, )
)
Petitioner, )
)
vs. ) CASE NO. 92-0955
)
CONSOLIDATED MINERALS, INC., )
and SOUTHWEST FLORIDA WATER )
MANAGEMENT DISTRICT, )
)
Respondents. )
) CONSOLIDATED MINERALS, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 92-0956
)
SOUTHWEST FLORIDA WATER )
MANAGEMENT DISTRICT, )
)
Respondent. )
) ENVIRONMENTAL CONFEDERATION )
OF SOUTHWEST FLORIDA, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 92-0957
)
CONSOLIDATED MINERALS, INC., )
and SOUTHWEST FLORIDA WATER )
MANAGEMENT DISTRICT, )
)
Respondents. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Daniel M. Kilbride, held a formal hearing in the above-styled consolidated cases on September 14 through September 24, 1992, in Port Charlotte, Florida. The following appearances were entered:
APPEARANCES
For Petitioner Alan R. Behrens (pro se) Alan R. Behrens: Route 2, Box 725-A-32
Arcadia, Florida 33821
For Petitioner Matthew G. Minter Charlotte County County Attorney Florida: Charlotte County
18500 Murdock Circle
Port Charlotte, Florida 33948-1094
For Petitioner David Levin, Esquire City Of North ICARD, MERRILL, CULLIS,
Port, Florida: TIMM, FUREN & GINSBURG, P.A.
2033 Main Street, Suite 600
Sarasota, Florida 34237
For Petitioners
Environmental Kenneth B. Wright Confederation of Sierra Club Legal Defense Fund Southwest, Post Office Box 1329
Florida, et al: Tallahassee, Florida 32302
For Petitioner/ Roger W. Sims Respondent, Rory C. Ryan
Consolidated 200 South Orange Avenue, Suite 2600 Minerals, Inc.,: Post Office Box 1526
Orlando, Florida 32801
For Respondent Richard Tschantz Southwest Florida Vivian Arenas Water Management 2379 Broad Street
District: Brooksville, Florida 34609 STATEMENT OF THE ISSUES
Whether the Southwest Florida Water Management District ("District") should renew and modify an existing water use permit held by Consolidated Minerals,
Inc. ("CMI") authorizing groundwater withdrawals at CMI's proposed "Pine Level" phosphate mine operation in DeSoto County, Florida.
Whether the water use requested in CMI's permit renewal application meets all the criteria specified in Rule 40D-2.301, Florida Administrative Code ("F.A.C"), with the exception of 40D-2.301(1)(d), F.A.C.; and
Whether CMI is exempt from the District's surface water management system permitting requirements as contained in Rule 40D-2.301(1)(d), F.A.C.
PRELIMINARY STATEMENT
This case arose when CMI petitioned for a formal administrative hearing to address the appropriateness of Special Condition No. 21 contained in the District's proposed permit. Other petitions in opposition to the District's Notice of Intention to renew CMI's water use permit, as described in Application No. 200103.02, were immediately filed by the City of North Port; Alan R. Behrens; Becky Ayech (who subsequently voluntarily withdrew her petition); Charlotte County, Florida; the Environmental Confederation of Southwest Florida ("ECOSWF"); and subsequently, a petition to intervene was filed by the Peace River/Manasota Regional Water Supply Authority ("Authority"). All of the petitions were consolidated after referral to the Division of Administrative Hearings by the District.
In August 1992, the Authority and CMI reached an understanding, which resulted in the voluntary withdrawal of the Authority's participation in the proceedings. CMI's agreement with the Authority provides, among other things, the following: (1) CMI will avoid reducing the flow in Horse Creek beyond an agreed upon level, and CMI further agreed to supplement flows under specified conditions; (2) CMI agreed to not cause contaminant levels to exceed drinking water standards, Class I surface water standards, or regulatory permit conditions; CMI also agreed to decrease or modify any contaminants in effluent from the mine in order to meet the most stringent water quality standards applicable, and to notify downstream water users of any discharge from the project that exceeds applicable water quality standards or permit conditions;
(3) CMI agreed to make water available to the Authority at no cost, if regulatory approval was obtained to do so, and (4) CMI agreed to restrict the clay in the mine water surge area to below ground volume.
At a motion hearing, it was ruled that the District has the authority to waive the procedural requirement that a completed application for an MSSW permit be submitted at the same time that the Water Use Permit was being considered.
Therefore, the Applicant would not be required to present evidence which pertained to the MSSW issues.
The direct testimony of all expert witnesses was prefiled, with the exception of CMI's rebuttal witness. Live cross and redirect examination occurred during the hearing.
At hearing, CMI presented the following witnesses: Dan H. Lynch, accepted as an expert in phosphate mine design, operation, and maintenance, and his prefiled testimony was admitted into evidence; Edmund Finch, accepted as an expert in phosphate mine beneficiation, and his prefiled testimony was admitted into evidence; Peter J. Schreuder, accepted as an expert in hydrology, hydrogeology, quantitative and qualitative aspects of water resource evaluation, and aquifer simulation modeling, and his prefiled testimony was admitted into evidence; Dr. John Garlanger, accepted as an expert in geotechnical and water
resources engineering, subsurface investigation, hydrology, hydrogeolgy, soil mechanics, and earthen dam design, and his prefiled testimony was admitted into evidence; Dr. W. Michael Dennis, accepted as an expert in biology, wetland ecology, threatened and endangered species and wildlife evaluation, and his prefiled testimony was admitted into evidence; Thomas A. Prickett, accepted as an expert in groundwater engineering and groundwater modeling; and Dr. Leslie G. Bromwell, President of CMI.
Exhibits offered by CMI were received in evidence as CMI Exhibits 1 through
28.
At final hearing, Alan R. Behrens presented the following witnesses: Joe
Fernandez and Alan R. Behrens, who testified on his own behalf.
Exhibits offered by Alan R. Behrens were received in evidence as Brehrens Exhibits 1 and 2.
At the final hearing, Charlotte County, Florida, presented the testimony of Charles W. Drake, accepted as an expert in hydrogeology, groundwater flow modeling, water use permitting, and water well construction, and his prefiled testimony was admitted into evidence with the exceptions of page 16, lines 16- 20; page 30, lines 1-25, page 31, lines 1-24, and page 32, lines 1-8; page 36,
lines 4-8, page 39, lines 10-14; page 42, lines 4-11, lines 14-25; page 45, lines 1-18, and page 47, lines 9-17, which portions the hearing officer reserved ruling on CMI's Motion to Strike, and which is now GRANTED. Furthermore, the testimony at page 41, lines 7-9 and lines 11-17, and at page 99, lines 9-15 was stricken. Further witnesses of Charlotte County, Florida, were D. C. Kenney, Thomas R. Guidry, and Kevin L. Erwin. Kevin L. Erwin was accepted as an expert in wetland ecology, and his prefiled testimony was admitted into evidence.
Charlotte County Exhibits 1-16, 17A & B, 18A 1-3, 18B, 19A & B, 20, 21A & B, and 22-31 were submitted in evidence.
At the final hearing, City of North Port, Florida, presented the testimony of Robert G. Tyson, Jr.
Exhibits offered by City of North Port, Florida, were received in evidence as North Port Exhibits 1-4.
At the final hearing, ECOSWF presented the following witnesses: Dr.
Jeffrey Mullahey, accepted as an expert in range and forage grasses, and his prefiled testimony was admitted into evidence; Syndey Bacchus, accepted as an expert in wetlands ecology, hydroecology, water chemistry, and aerial photo interpretation, and her prefiled testimony was admitted into evidence, with the exception that the phrase in the first sentence of the second question on pg. 11 was stricken. The hearing officer reserved ruling on the following portions of Ms. Bacchus' testimony: (1) pg. 15; (2) the first through fifth paragraphs on pg. 16; (3) the third paragraph on pg. 17; (4) the top of pg. 18 regarding photographs and the form of the question following the testimony; (5) the testimony contained on pages 18 through 20 of the prefiled testimony dealing with the Daytona Beach Wellfield, the New Smyrna Beach Wellfield, and testimony regarding photographs; (6) the bottom of pg. 23 and the top of pg. 24; (7) commencing on pg. 24 and continuing through pg. 26; (8) the second paragraph of pg. 26; and (9) the exhibit referred to on pg. 27, that is, Exhibit No. 10, which motion is now GRANTED. Further witnesses of ECOSWF included Gerald C. Hartman, accepted as an expert in public water supply and treatment, and his
prefiled testimony was accepted into evidence; and Charles Bailey Williams and Dr. Leslie Bromwell as adverse witnesses.
Exhibits offered by ECOSWF were received in evidence as ECOSWF Exhibits 1- 6, 7 A-C, 8, 9, 10 A-D, 11 A-U, 12 A-N, 13 A-I, 15-19, 20 A-C, 21 and 22.
At the final hearing, the District presented the following witnesses: Ken Weber, accepted as an expert in hydrology and water us permitting, and his prefiled testimony was received in evidence; Scott T. Peterson, accepted as an expert in hydrology and groundwater modeling applications, and his prefiled testimony was received in evidence. Pertinent portions of Dawn Turner's deposition was admitted into evidence.
The following exhibits offered by the District were received in evidence as District Exhibits 1, 1A, 2-4.
During the public input section of the hearing, two exhibits were received into evidence as Public Exhibits Nos. 1 and 2.
A transcript of the proceeding was filed with the Division of Administrative Hearings on October 26, 1992. Each of the parties filed proposed recommended orders set for November 16, 1992.
Specific rulings on the findings of fact proposed by each party are found in the attached appendix.
Based upon all of the evidence, the following findings of fact are determined:
FINDINGS OF FACT
THE PARTIES
CMI is a Florida corporation authorized to do business in Florida. CMI owns a mine site as is depicted in the permit application, which mine site is known as "Pine Level".
Alan R. Behrens owns residential property approximately two miles from Pine Level, which abuts Horse Creek. He maintains an individual well for domestic and other purposes, and is a substantially affected person under the statute.
Charlotte County is a government entity and a political subdivision of the State of Florida, and is a substantially affected person under the statute.
The City of North Port is an incorporated municipality of the State of Florida, and is a substantially affected person under the statute.
The Environmental Confederation (ECOSWF), a citizens group, is a substantially affected person under the statute.
The District is the agency with the responsibility for reviewing and ruling upon CMI's water use permit application.
APPLICATION AND PROCESS
CMI proposes to operate a phosphate mine facility at "Pine Level" ("site"). The site is located approximately seven miles west of Arcadia, DeSoto County, Florida. The mine reserves at the site are approximately 17,700 acres. 9,000 to 10,000 acres are projected for mining.
In 1978, Consumptive Use Permit No. 200103, was issued and in 1986, the current owners purchased the corporation which held the permit, and changed the name of the corporation to CMI. The Industrial Water Use Permit has not been used since it was issued to a prior owner of the site, and provided for average daily withdrawals of 13.6 mgd from wells. In 1984, this permit was renewed and modified to provide for average daily withdrawals of 12.8 mgd from deep wells.
The groundwater withdrawals currently sought by CMI is 6.9 million gallons per day ("mgd") average daily withdrawal, which totals include 5.1 mgd from deep wells for use in the amine flotation process and 1.7 mgd for sealing the matrix slurry pumps. This reduction to 6.9 mgd in permitted withdrawals is a significant reduction. In addition, the proposed permit allows 3.7 mgd to be withdrawn from the surficial aquifer by dewatering mine cuts.
In November, 1990, CMI submitted an application for renewal. In November 1991, CMI submitted to the District a revised Water Use Application No. 200103.02 ("application") to renew and modify the existing water use permit.
The District requested more information, and CMI provided additional information and supplemental responses to aid in the review and evaluation of the application.
The District prepared and submitted a Notice of Intent to Issue Permit and the District staff has prepared a "draft" Permit No. 200103.02 authorizing the withdrawal of the quantities requested in the application with certain conditions.
In addition to renewal and modification of the water use permit, which is the subject of this proceeding, CMI will be required to participate in numerous regulatory reviews and permitting procedures (i.e. a development of regional impact evaluation, a federal environmental impact statement, federal approvals under the Clean Water Act [including a national pollutant discharge elimination system ("NPDES") permit], and a conceptual reclamation plan review) before CMI may commence mining, and consequently, begin any withdrawal of water.
The mining process will utilize large walking draglines to excavate over burden and stack it beside the active mining area for land reclamation.
The ore material called "matrix" will be dug up by the draglines, placed into an earthen pit where it will be slurried with a high pressure water jet. A pump will pick up this slurried matrix material, pump it back to the processing plant where it will first go through various separation devices, including screens and cyclones. The course material termed "pebble" will be separated and parts of that will be directly saleable as a product.
The bulk of the phosphate product is contained in intermediate-sized material called concentrate feed. The concentrate feed consists of ore and sand. The ore is separated from the sand in a process called "flotation".
The flotation process is a two stage process that ends up separating the tailings sand, which can then go back to the sand-clay flocculation and
mixing units, and be pumped out ultimately for land reclamation back in the mine-out areas. The phosphate product which is called "wet rock", is placed in storage bins where it can drain, and be loaded onto rail cars for shipment.
The "amine flotation process" is the second stage of flotation where sand and phosphates are separated.
This process requires clean water for the amine flotation phase, because any amount of contaminants, including organic reagents, will adversely affect the process. Any mineral particles must be removed so that the amine may attach itself to the phosphate. Any contaminants will destroy or significantly and adversely affect not only the phosphate recovery, but the entire flotation process.
Deep well water is requested for use in the amine flotation process because it is clean. All phosphate mines in Florida currently rely on deep well water.
5.2 mgd is the minimum amount of "clean" water needed to assure efficient processing of the amine flotation process of the mine beneficiation plant.
Deep well withdrawals are also commonly used for the purpose of sealing or protecting the packing of pumps at various points in the mine system in order to avoid damage to the equipment. These wells are often referred to as "sealing water wells". The Pine Level mine will require 1.7 mgd for this purpose.
Water for the sealing water wells must be clean and clear in order to effectively seal pumps for leaks.
The Pine Level project will provide 400-500 construction jobs during the construction period. It will provide approximately 200 full-time jobs with an annual payroll of about five million dollars once it is in operation. It will result in about one thousand additional jobs providing services to the development. It will pay in excess of one million dollars a year to DeSoto County in ad valorem taxes.
TECHNICAL CRITERIA
The water use is a reasonable and beneficial use.
5.2 mgd groundwater withdrawal is "necessary to fill a certain reasonable demand."
The technical criteria relating to water level or rates of flow impacts set forth in Rule 40D-2.301(1)(d), Florida Administrative Code, are not applicable in this proceeding because the District has not established any regulatory levels or rates of flow for the area encompassed by the application. In addition, this presumption only addresses surface water withdrawals.
Phosphate mining is a beneficial activity and is consistent with the public interest.
There is no significant risk of salt water intrusion.
The water use withdrawal will not degrade the water quality in the aquifer by causing any contamination plume to spread. There have been no contaminant plumes identified on site.
GROUNDWATER IMPACTS
There is sufficient ground water at the site of a suitable quality and quantity to support the proposed phosphate mining and beneficiation activities.
The local hydrogeology at the site consists of an upper layer known as the surficial aquifer. Rain penetrates the surficial aquifer to flow vertically to the water table. The water that is not consumed by vegetation at this layer will flow either to a nearby stream channel or will leak down through a semi- confining layer. The water continues to seep vertically into the lower underlying limestone aquifers. There are three limestone water-bearing layers: the intermediate, the Suwannee or Upper Floridan, and the Avon Park or Lower Floridan aquifers, respectively. The intermediate and the underlying Suwannee aquifer are separated by another semi-confining layer. Likewise, the Avon Park aquifer and the Suwannee aquifer are separated by another semi-confining layer.
At the site, wells in the intermediate aquifer will draw water to seal the bearings on the matrix slurry pumps. There will be one deep well in the Suwannee and one deep well in the Avon Park to draw for the beneficiation plant.
The groundwater modeling performed by CMI simulated the four aquifers, that is, the surficial aquifer and each of the three limestone aquifers.
An Aquifer Performance Test ("APT") was performed at the site. The data generated from the APT was used to calculate various aquifer parameters, for example, transmissivity, storage coefficient, and leakiness. This information was then used in setting up the groundwater flow model that ultimately was incorporated into the application.
During the District staff's review of the application, the deep well withdrawal quantities requested by CMI were compared with approximately 6 other phosphate mines of comparable size, acreage, and type of operation. As a result of this comparison, the staff found CMI's requested use to be less than the other six phosphate mines.
The use of recycled water in the amine flotation process in place of deep well water in the past by CMI has proven unsuccessful because a constant temperature and a constant ph level could not be maintained with recycled water, and recycled water contains traces of fatty acids and oils, which also negatively affect the amine flotation process.
C.F. Industries, Inc., has been operating a phosphate mine in Hardee County, Florida, since 1978.
C.F. Industries, Inc., has since 1983 at the Hardee County mine, successfully substituted recirculation water for deep well water for operation of the amine flotation circuit on a routine basis.
C.F. Industries, Inc., presently plans to employ substitution of some recirculation water for deep well water in a new yet-to-be permitted mine.
C.F. Industries, Inc., at its existing Hardee County mine requires use of deep well water for start-up purposes to "charge" the system.
C.F. Industries, Inc., at its existing mine, uses deep well water to respond to abnormal operational conditions, including excessive rainfall events, when the quality of the normal recirculation water is not suitable for substitution of deep well water.
Neither CMI, nor District staff was aware prior to hearing, that the
C.F. mine was successfully substituting recycled water for deep well water in the amine flotation process.
At the time of making the representations to the District about necessary water quality requirements of the flotation process, CMI had a study, entitled, Amine Water Evaluation, Pine Level Project, July 27, 1984, ("Pilot Plant Study"), which concluded that deep well pumping and discharge could be reduced by use of water drawn from mine cuts.
The Pilot Plant study was site specific to CMI's proposed phosphate mine. The Pilot Plant study bench tests were verified in the same pilot plant facility CMI uses to verify the grade of ore on the Pine Level Site.
The Pilot Plant study or its results were known to CMI officials or experts involved in the permit application at issue in this case.
CMI did not inform District staff of the existence or conclusions of the Pilot Plant study.
The Pilot Plant study indicates that CMI could reduce its water usage by substituting water from mine cuts for deep well water.
CMI did no studies to determine if the substitution of mine cut water for deep well water, as suggested by the Pilot Plant Study, was feasible to implement.
SURFACE WATER IMPACTS
The phosphate ore (matrix), is extracted by an excavation machine called a "dragline", which opens mining cuts of approximately 32 to 35 feet in depth, 330 feet wide, and up to 4,000 feet long.
Seepage occurs into the mine cuts from the water table, and must be pumped out in order to see and extract the matrix. This dewatering is also necessary to protect the draglines against slope stability problems.
Water pumped out of the mining cuts is introduced into the mine water recirculation system which is operated for purposes of collecting and recycling water within the mine complex.
The matrix that is extracted from the mining cut is placed in a shallow excavation near the cut, and is converted to a slurry and, thereafter, transported hydraulically to the mine processing (or "beneficiation") plant.
The beneficiation plant uses considerable quantities of water, utilizing supplies from within the mine system (i.e. surface water) and water from deep wells.
Sand tailings and sand and clay mixture are by-products of the mining process.
Recycled water is used to transport waste clay and sand from the plant to the disposal and reclamation areas.
Reclamation takes 1-2 years for areas reclaimed with sand tailings and 5-6 years for areas reclaimed with a sand-clay mixture.
Groundwater that is used in the processing plant is recycled. Water within the mine is recycled a number of times, and CMI's proposal calls for 90 percent of the total mine demand to be satisfied by this recirculation system and approximately 96 percent of the water used is recyclable water.
DEWATERING AND WATER BALANCE
CMI's mine pit dewatering activities result in the withdrawal of water from the surficial aquifer.
A "water balance" demonstrates that requested quantities relate to reasonable mining, processing, and dewatering needs.
The "water balance" for the mining operation evidences a balance between sources and uses/losses.
The sources of water in the CMI water balance that input to the mining operation include groundwater from wells (6.9 mgd), mine cut dewatering or water table drainage (3.7 mgd), and collected rainfall (3.1 mgd).
Uses and losses associated with the mining operation include water retained in clays (6.7 mgd), water shipped with final product (.7 mgd), evapotranspiration and evaporation (3.0 mgd), water used for agricultural irrigation (5.0 mgd), and water seeping from the Mine Water Surge Area ("MWSA") (1.2 mgd).
The water balance matrix moisture component of 2.9 mgd is not a withdrawal of water for water use permitting purposes.
The District's modeling of the impacts resulting from mine cut dewatering resulted in a finding of 2.34 MGD as opposed to the 3.7 mgd derived by CMI.
For calculation purposes, rainfall is collected at the rate of 3,974 gallons per acre per day.
CMI calculates that it will collect 3.1 mgd of rainfall, and use it in its recirculation system.
The 3.1 mgd calculation is based on the amount of rain that will fall on 600 acres of mine water surge area, 80 acres of plant site, and two 50 acre mine cuts.
CMI plans to mine 450 acres each year at the Pine Level Site over a period of 22 years.
Runoff over disturbed areas on the CMI mine site must be captured, and will become part of the recirculation system.
Assuming only one year of disturbed area during the permit term, CMI has failed to account for nearly 1.8 mgd in its water balance (450 acres x 3,974 gallons/acre/day).
CMI plans to pump any rainfall collected from all disturbed areas to the mine water surge area (MWSA).
CMI has not included any acres of disturbed area in its calculations of the amount of rainfall it will collect for the current permit.
CMI has not submitted a mine plan. Without a mine plan, the number of disturbed acres cannot be determined.
Because CMI's water balance does not include rainfall collected over disturbed areas, the water balance is incorrect.
The rainfall collected from the disturbed areas will increase the amount of water that CMI will need to discharge or use for agricultural purposes.
Excavation of the Mine Water Surge Area will cause dewatering of the surficial aquifer.
No analysis was done of how much dewatering of the surficial aquifer will occur as a result of the excavation of the MWSA, or of the potential impacts to wetlands as a result of the dewatering activities.
The District's one foot draw down presumption applies to dewatering as well as to groundwater pumping.
The proposed dewatering setback from wetlands was set at 660 feet. The 660 foot setback distance is in lieu of mitigation if CMI wishes to mine within the setback distance, it will be required to implement mitigation procedures.
Dewatering draw downs in the surficial aquifer as great as six and one-half to seven feet could occur on the CMI site at 660 feet from a mine cut under dry weather conditions.
At 660 feet, the predicted draw down is nearly one and one-half feet using a mine pit depth of 26 feet, based on a three foot water table and a 29 foot average mine cut depth for the area expected to be mined during the term of the permit.
Actual mine cut depths during the term of the permit would be as deep as thirty-seven feet which result in a draw down in the aquifer that is greater than one and on-half feet.
Combining the dewatering calculations with the surficial aquifer draw downs resulting from CMI's planned well pumping from the intermediate and Floridian aquifers result in greater than predicted draw downs.
CMI's water balance did not account for changes in water needs due to variability of the ore body.
WATER QUALITY
CMI has not demonstrated that the water quantities requested for the operation of the phosphate mine and beneficiation plant, and land reclamation and water handling will utilize the lowest water quality to the greatest extent practicable.
Nevertheless, the Pine Level mine is innovative in comparison to other operating mines. It proposes to reduce its groundwater requirement by increasing the amount of recycled water used in the amine flotation process; employ an innovative sand/clay mixing technique for land reclamation, thus eliminating the need for conventional large, above-ground day settling areas or slime ponds; and use surplus water for irrigation of agricultural crops or pasture.
CMI plans to mine the Pine Level Site for a period of 22 years.
For phosphate mines, neither DNR, nor SWFWMD analyze impacts with respect to surface water during the mining process.
For phosphate mines, no state agency looks at off-site surface water impacts from the standpoint of draw downs, with the possible exception of cities and counties.
The District has not required CMI to submit an application for the management and storage of surface waters permit, since the District staff believes that phosphate mines are exempt from obtaining any MSSW permit from the District.
A gap exists in the regulatory scheme for phosphate mines with respect to the reduction of surface water flows during the mining process if SWFWMD exempts phosphate mines from obtaining an MSSW permit.
INTERFERENCE WITH EXISTING LEGAL USERS
The City of North Port is an existing legal user of water.
The City of North Port has a public water supply facility which draws its water from the Big Slough.
The Big Slough normally gets a portion of its flow from high quality water in the surficial aquifer.
CMI's proposed Pine Level phosphate mine is located in the watersheds which feed the Big Slough and the Peace River.
In the initial years of the mine, virtually all of the collected rainfall will be diverted from the Big Slough watershed.
No analysis has been done to see how dewatering might affect the City of North Port.
Any significant reduction in flow to the City of North Port's facility during the low flow season will interfere with North Ports existing legal use of water.
Diversion of 3.1 mgd of rainfall from the Big Slough will have an adverse impact on the City of North Port's water facility.
The City of North Port is currently under a consent agreement with the Florida Department of Environmental Regulation because the water supplied by its facility violates drinking water quality standards for sulfates and total dissolved solids ("TDS") regularly during periods of low flow in the Big Slough.
The MWSA, the plant area and the initial mining areas are primarily within the Big Slough drainage area.
Seepage of 1.2 mgd from the MWSA will flow into the Big Slough.
The only analysis done of the quality of the seepage from the MWSA was a rough analysis which showed that sulfates will likely be around 550 grams per liter.
The legal standard for sulfates in drinking water is 250 grams per liter.
Seepage from the MWSA will be high in total dissolved solids ("TDS") since a good portion of it was pumped from deep wells which have very high levels of TDS.
No analysis was done of the potential of this seepage water to interfere with North Port's facility.
Charlotte County is an existing legal user of water whose water supply is drawn from the Peace River downstream from the proposed CMI phosphate mine at Pine Level.
Discharge of 5.0 mgd from the Pine Level mine could adversely affect Charlotte County's drinking water facility located on the Peace River.
AGRICULTURAL USE
CMI proposes to use 5.0 MGD of surplus water for irrigation of pasture grasses for cattle.
CMI has not conducted any specific tests to determine the feasibility of using the discharge or the quality of the water that they plan to use for agricultural irrigation.
The water for irrigation will be drawn out of the mine water surge area.
The determination of whether the 5.0 mgd discharge can be used for agricultural irrigation has been postponed. The staff's position is that the proposed special conditions provide reasonable assurances that the discharge will comply with the requirements of the Basis for Review.
WETLANDS
Isolated wetlands occur throughout the CMI mine site.
The isolated wetlands on the CMI property provide habitat for endangered and threatened species.
Sandhill Cranes and Wood Storks, both threatened or endangered species, were sighted on the CMI property by wetlands experts during their site visit prior to the hearing.
Small isolated wetlands on CMI property would be adversely affected by less than a one foot draw down.
Wetland peat soils oxidize if exposed to the air.
Oxidation results in subsidence of the wetland soils, which adversely impacts wetlands.
Too much water as well as too little water can adversely impact wetlands.
The combined effects of aquifer pumping and dewatering planned at the CMI site will adversely affect wetlands.
No analysis was completed of the impacts to wetlands as a result of the combined effects of dewatering and pumping from the aquifer.
No information regarding the normal range of wetland hydroperiods for preserved wetlands or other onsite unmined wetlands was introduced.
No information was provided regarding the habitat functions provided by the wetlands on the CMI site either for threatened or endangered species or otherwise.
ENVIRONMENTAL IMPACT
The Applicant did not provide reasonable assurance that the water use will not cause unacceptable adverse impacts to environmental features on or off- site.
The Applicant did not provide reasonable assurances that the water use will not have an adverse impact to surface water bodies such as lakes, ponds, impoundments, springs, streams, canals, estuaries or other water courses.
The Applicant did not provide reasonable assurances that there will be no adverse environmental impact to wetlands, lakes, streams, estuaries, fish, and wildlife or other natural resources.
The Applicant did not provide reasonable assurances that there will be no adverse impacts to the surface water system or vegetation as a result of groundwater withdrawal.
The Applicant did not provide reasonable assurances that the water use will not have an adverse impact by altering or impairing the habitat of threatened or endangered species.
The Applicant did not provide reasonable assurances that the projected draw downs will not result in any adverse impact to any protected or non-protected plant or animal species.
The Applicant did not provide reasonable assurances that the water use will not have an adverse environmental impact to wetlands.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsection 120.57(1), Florida Statutes.
Section 373.219(1), Florida Statutes, provides in pertinent part:
The governing board or the department may require such permits for consumptive use of water and may impose such reasonable conditions as are necessary to assure that such use is consistent with the overall objectives of the district or department and is not harmful to the water resources of the area...
Section 373.223(1), Florida Statues, provides in part in pertinent part:
To obtain a permit pursuant to the provisions of this chapter, the Applicant must establish that the proposed use of water:
Is a reasonable-beneficial use as defined in s. 373.019(4);
will not interfere with any presently existing legal use of water; and
is consistent with the public interest.
Section 373.019(4), Florida Statutes, provides in pertinent part:
Reasonable-beneficial use' means the use of water in such quantity as is necessary for economic and efficient utilization for a purpose and in a manner which is both reasonable and consistent with the public interest.
Section 40D-2.101, Florida Administrative Code, provides in pertinent part:
In order to obtain a Water Use Permit, an Applicant shall file with the [Southwest Florida Water Management] District the appropriate form entitled 'Water Use Permit Application' including
the appropriate supplemental forms. The Application shall include the following information:
Information sufficient to demonstrate that the water use meets the criteria and conditions established in Rule 40D-2.301;
Information required on the Water Use Permit Application and supplemental forms....
Section 40D-2.301, Florida Administrative Code, provides in pertinent part:
In order to obtain a Water Use Permit, an Applicant must demonstrate that the water use is reasonable and beneficial, is in the public interest, and will not interfere with any existing legal use of water, by providing
reasonable assurances, on both an individual and cumulative basis, that the water use:
Is necessary to fulfill a certain reasonable demand;
Will not cause quantity or quality changes which adversely impact the water resources, including both surface and ground waters;
Will not cause adverse environmental impacts to wetlands, lakes, streams, estuaries, fish and wildlife, or other natural resources;
Will not cause water levels or rates of flow to deviate from the ranges set forth in Chapter 40D-8;
Will utilize the lowest water quality the Applicant has the ability to use;
Will not significantly induce saline water intrusion;
Will not cause pollution of the aquifer;
Will not adversely impact off-site land uses existing at the time of the application;
Will not adversely impact an existing legal withdrawal;
Will utilize local water resources to the greatest extent practicable;
Will incorporate water conservation measures;
Will incorporate reuse measures to the greatest extent practicable;
Will not cause water to go to waste; and
Will not otherwise be harmful to the water resources within the District.
Permit Applications for projects which integrate a surface water management system with a water use system and require a surface water management permit pursuant to Chapter 40D-4 shall submit a completed surface water management permit application to the District prior to the issuance of a Water Use Permit.
The standards and criteria set forth in the 'Basis of Review For Water Use Permit
Applications', identified in Rule 40D-2.091, shall be used to provide the reasonable assurances required in Rule 40D-2.301(1).
Section 40D-2.382(1), Florida Administrative Code, provides in pertinent part:
The Governing Board shall impose on any permit granted under this Chapter such reasonable conditions as are necessary to assure that the permitted operation will be consistent with the overall objectives of the District and will not be harmful to the water resources of the District or existing legal users.
Section 40D-2.381(3), Florida Administrative Code, provides in pertinent part:
Every permit acquired under this Chapter shall include the following standard conditions which impose certain limitations on the permitted water withdrawal:
* * *
(b) This permit is issued based on information provided by the Permittee demonstrating that the use of water is reasonable and beneficial, consistent with the public interest, and will not interfere with any existing legal use of water.
If, during the term of the permit, it is determined by the District that the use is not reasonable and beneficial, in the public interest, or does impact an existing legal use of water, the Governing Board shall modify this permit or shall revoke this permit following notice and hearing....
Section 40D-2.091, Florida Administrative Code, incorporates by reference the "Basis of Review for Water Use Permit Applications, October 1989". (Hereinafter referred to as "Basis of Review"). 138 Section 1.5, Basis of Review, provides in pertinent part:
Applications for large withdrawals or for withdrawals in hydrologically or environmentally sensitive areas may require detailed site-specific information in support of the application. The supporting information may include an aquifer test program, water quality surveys, well inventories, and environmental assessments. The need for supporting information will be based on the size
of the proposed withdrawal, aquifer characteristics in the region, sensitivity of the environment, density of nearby existing withdrawals, and proximity of existing data....
Section 3.1, REASONABLE DEMAND, Basis of Review, provides in pertinent part:
Proper accounting for each proposed water use is essential to establish that the use is reasonable, beneficial, and in the public interest....Demand information may be estimated from historical data, comparable uses, and acceptable forecasting techniques.
Section 3.3, AGRICULTURE, Basis of Review, provides in pertinent part:
Applicants must demonstrate that the quantities applied for relate to reasonable irrigation, livestock, aquaculture, and other agricultural water needs. This demonstration is typically accomplished by providing information on the types and acreage of crops to be irrigated,
the crop growing season, the irrigation systems used, crop establishment, application of chemicals and fertilizers, frost/freeze protection, the type
and number of livestock and seasonal herd size fluctuations, and other specific use information....
Section 3.3, IRRIGATION, Basis of Review, provides in pertinent part:
Typically, the reasonable need for irrigation water use is equal to the supplemental crop requirement divided by the system efficiency
or the system design capacity, whichever is less....
Section 3.3, Supplemental Crop Requirement, Basis of Review, provides in pertinent part:
The supplemental crop requirement is the amount of water needed for a particular crop beyond the
amount of water provided by effective rainfall....
Section 3.3, System Efficiency, Basis of Review, provides in pertinent part:
...It is important that Applicants use the most efficient system practical for their irrigation needs....
Section 3.3, PASTURE IRRIGATION, Basis of Review, provides:
Applications for the irrigation of unimproved pasture will not be approved. Authorization of water use for improved pasture may be given only for the period need if the Applicant documents that an irrigation system exists (or is proposed)
and is capable of delivering the requested amount....
Section 3.5, MINING OR DEWATERING, Basis of Review, provides in pertinent part:
Applicants must demonstrate that the quantities applied for relate to reasonable mining, processing, and dewatering needs. Needs are generally demonstrated by providing information on the water balance for the operation, including all sources and losses of water utilized in the
mining and dewatering process, the personal/sanitary needs of employees and customers, the type and amount of lawn and landscape to be irrigated, the schedule of irrigation, the type of irrigation system to be used, and other specific uses. The water balance should also account for changes in water needs caused by variability in the ore body, production schedules and market conditions.
Applicants for mining and dewatering uses must identify the demand for each of the following components:
* * *
2. Process requirements - water lost in the actual mining, processing, and dewatering processes.
This quantity is determined through the creation of a water balance.... The water balance demonstrates where water is generated and in what quantities, where water is used in mining and associated losses, and where and in what quantities water is disposed of or reused.... The balance may be in the form of a spreadsheet or a flow diagram that indicates all water sources and losses. All sources of water
that input to the activity must be accounted for. Sources may include, but are not limited to:
Ground water from wells,
Ground water from water table dewatering or drainage,
Surface water withdrawals,
Collected rainfall, and
Recycled or reused water.
The uses of these water inputs are quantified, and the amount used and lost during each stage of the activity is calculated. All uses and losses must be listed. Uses and losses may include, but are not limited to:
Water used to wash the product,
Evaporation from settling/recirculation ponds,
Water retained and shipped with the product (product moisture),
Water used to separate or beneficiate the product, and
Water used to transport the product (slurry).
The final disposal of all water then must be identified....
The amount of water withdrawn should equal the sum of the system losses and disposals.
Section 4.1, REASONABLE DEMAND, Basis of Review, provides in pertinent part:
The proposed withdrawal of water must be supported with the information, specified in Section 3.0, demonstrating that the
withdrawal quantities are necessary to supply a certain reasonable need or demand. Only that portion of demand that is supported by adequate documentation will be permitted.
Section 4.2, ENVIRONMENTAL IMPACTS, Basis of Review, provides in pertinent part:
The withdrawal of water must not cause unacceptable adverse impacts to environmental features....
Environmental features that will be evaluated by District staff when determining withdrawal impacts include:
Surface water bodies such as lakes, ponds,
impoundments, sinks, springs, streams, canals, estuaries, or other watercourses;
Wetland habitats;
On-site environmental features and their relationship to local and regional landscape patterns;
Habitat for threatened or endangered species; and
Other environmental features which are dependent upon the water resources of the District.
Potential environmental impacts will be evaluated by comparing the existing natural system to the predicted post-withdrawal conditions....
Listed below are the performance standards District staff will use to ensure that unacceptable adverse impacts to environmental features do not occur....
Wetlands
Wetlands Evaluated
In reviewing an application for a Water Use Permit, the District evaluates wetland impacts that are predicted to occur as a result of water withdrawals....The District regulates both wetlands contiguous to waters of the state as well as isolated wetlands which are not within the jurisdiction of DER for purposes of dredge and fill.
Wetlands Not Evaluated
The District will not consider impacts to isolated wetlands less than 0.5 acres, unless:
a wetland is used by endangered or threatened species designated in Rules 39-27.003, 39-27.004, F.A.C., or 50 CFR 17.12.
* * *
c. Two or more wetlands regardless of property boundaries have a combined area greater than 0.5 acres and are connected by standing or flowing surface water during average wet season high water levels....
Wetlands Affected By Mining Activities
Certain mining activities in wetlands are reviewed by the Department of Environmental Regulation (DER) for wetlands impacts, the Department of Natural Resources (DNR) for wetlands reclamation, or various reviewing agencies under the Development of Regional Impact (DRI) process. Mining and Dewatering use Applicants whose wetland activities are reviewed under any of these processes must submit to the District a mine plan which corresponds to the term of the permit identifying the items listed below. The permittee shall provide an updated mine plan to the District prior to any water use or dewatering activities which would impact wetlands because of changes to the previously submitted mine plan. For Mining and Dewatering use applications, the District will consider withdrawal impacts only to off-site wetlands and:
wetlands to be preserved under applications approved by DER, plans approved by DNR, or under a Development Order;
wetlands created or required to be created as part of a reclamation plan approved by DNR or a mitigation plan approved by DER; and
any other on-site wetlands that will not be mined....
Performance Standards
Wet season water levels shall not deviate from their normal range.
Wetland hydroperiods shall not deviate
from their normal range and duration to the extent that wetlands plant species composition and community zonation are adversely impacted.
Wetland habitat functions, such as providing cover, breeding, and feeding areas to obligate and facultative wetland animals shall be temporally
and spatially maintained, and not adversely impacted as a result of withdrawals.
Habitat for threatened or endangered species shall not be altered to the extent that utilization by those species is impaired.
Presumption
The District presumes that a withdrawal of water will not cause unacceptable environmental impacts if the withdrawal of water, combined with other withdrawals, does not lower the water table at the wetland by more than 1 foot....
Streams
Performance Standards
Flow rates shall not deviate from the normal rate and range of fluctuation to the extent that water quality, vegetation, and animal populations are adversely impacted in streams and estuaries.
* * *
c. Flow rates shall not deviate from the
normal rate and range of fluctuation to the extent that recreational use or aesthetic qualities of the water resource are adversely impacted.
Presumptions
The District presumes that the withdrawal
of water will not cause unacceptable environmental impacts if the withdrawal, combined with other withdrawals, does not reduce the rate of daily flow by more than 10 percent at any point in the drainage system at the time of the withdrawal....
Section 4.4, UTILIZATION OF LOWEST QUALITY WATER, Basis of Review provides in pertinent part:
Consideration must be given to the lowest quality water available, which is acceptable for the proposed use. If a lower quality of water is available and is technologically and economically feasible for all or a portion of an Applicant's use, this lower quality water must be used. Such lower quality water may be in the form of reclaimed water (treated wastewater effluent), recovered agricultural tailwater, collected stormwater, saline water, or other sources.
Section 4.8, INTERFERENCE WITH EXISTING LEGAL WITHDRAWALS, Basis of Review, provides in pertinent part:
1. Performance Standards
A permit application shall be denied if the withdrawal of water together with other withdrawals would cause an unmitigated adverse impact on a legal water withdrawal existing at the time of the application. An adverse impact is considered to occur when the requested withdrawal would impair the withdrawal capability of an existing legal withdrawal to a degree that the existing withdrawal would require modification or replacement to obtain the water it was originally designed to obtain....
Section 4.10, WATER CONSERVATION, Basis of Review, provides in pertinent part:
Applicants shall demonstrate that any economically and practicably feasible water conservation activities related to their use have been or will be implemented....
Section 4.11, REUSE, Basis of Review, provides in pertinent part:
Applicants shall demonstrate whether reclaimed water is available and appropriate for reuse and shall incorporate reuse of reclaimed water to the greatest extent practicable. In determining whether an Applicant meets this criterion, the District shall consider whether the use is economically, environmentally and technically feasible.
A Section 120.57(1), Florida Statutes, hearing is a de novo administrative hearing to formulate the agency's final action. The Applicant, CMI, has the affirmative obligation of presenting sufficient evidence to establish its entitlement to the requested permit. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981).
In order to satisfy its burden of proof and thus be entitled to the requested permit, CMI has the responsibility of providing reasonable assurances at the administrative hearing that its proposed use of water is a reasonable- beneficial use, will not interfere with any presently existing legal use of
water, is consistent with the public interest, and satisfies the "Conditions For Issuance of Permits" contained in Section 40D-2.301, Florida Administrative Code. Osceola County v. St. Johns River Water Management District, 92 ER FALR
109 (SJWD June 10, 1992)
The burden of proof in these proceedings is clearly upon CMI to demonstrate that it has satisfied the statutory and rule prerequisites to the issuance of a permit, that its activity will not cause adverse environmental impacts, and not upon the Petitioners to prove that adverse impacts will be caused by CMI's proposed activity. Harloff v. City of Sarasota, 575 So.2d 1324 (Fla. 2nd DCA 1991). See also, In re: South Dade Agro Homes, Inc., 7 FALR 3645 (SFWMD June 13, 1985) (Applicant failed to provide reasonable assurances that water use in an undisturbed wetland habitat would not cause environmental harm).
Although the rules require the Applicant to prove "reasonable assurances", this does not mean that the Applicant is required to provide absolute guarantees on both an undivided and cumulative basis. Manosota 88, Inc. v. Agrico Chemical Co., 12 FALR 1319 (SWFWMD) February 18, 1990.
Prior to the commencement of the formal hearing, upon notice and argument by all the parties, it was ruled that the District had the authority to waive the procedural requirement that a completed application for an MSSW permit be submitted at the same time that the Water Use permit was being considered and had done so in this case. Based on that ruling, the Applicant went forward with its case in Chief, and was not required to present evidence which pertained to MSSW permit issues.
However, the Applicant had the burden of proof and the burden of persuasion that it has met all the conditions for issuance of a Water Use permit, as set forth in Rule 40D-2.301, Florida Administrative Code, and the "Bases for Review for Water Use Permit Application."
The District position is that its rules exempt phosphate mines such as CMI from the requirement to obtain a Management and Storage of Surface Waters (MSSW) permit. For this reason, the District did not require CMI to submit an application for an MSSW permit prior to obtaining its consumptive water use permit.
The staff interpreted Rule 40D-2.101(6), Florida Administrative Code, which states in pertinent part:
"40D-2.101 Content of Application
* * *
(6) For projects that integrate a surface water management system with a water use system and require a surface water management
permit pursuant to Chapter 40D-4; the Applicant must demonstrate that a completed surface water management permit application has been submitted." (emphasis added)
and Rule 40D-2.301, Florida Administrative Code and Section 2.2 of the "Basis of Review for Water
Use Permit Applications, which has similar language, to permit the District to exempt phosphate mines from the requirement to obtain an MSSW permit.
However, the exemption relied on by the District and CMI was held invalid in Booker Creek Preservation, Inc. v. Southwest Florida Water Management District, 534 So.2d 419, 424 (Fla. 5th DCA 1988) by reason of the Legislative mandate set forth in Section 373.414, Florida Statutes, requiring protection of isolated wetlands.
The argument that Section 373.406(5) provides the authority for the District to exempt phosphate mines from surface water permit requirements is misplaced. This section allows agencies to enact exemptions by rule which implement interagency agreements. The Booker Creek court, however, held that only exemptions related to the single express exemption set forth in section
373.414 could be validly promulgated by the District. Id. at 423. Since the Legislature did not amend section 373.414, the District has no authority to enact such an exemption.
Moreover, the interagency agreement between the District and the DNR is wholly unrelated to isolated wetlands. Instead, consistent with DNR's responsibilities pursuant to Chapter 378, Florida Statutes, the agreement is concerned with reclamation. Memorandum of Understanding Between the Department of Natural Resources and Southwest Florida Water Management District, November 17, 1986 at 1-2. Furthermore, it is clear that DNR's responsibility pursuant to the MOU does not include protection of isolated wetlands during mining. In contrast, the declared intent of the District's surface water regulations for mining other than phosphate is:
to protect the water resources including wetlands and other natural resources both during mining operations and following completion of mining activities.
Therefore, the District cannot exempt the Applicant from submitting a complete application for and obtaining an MSSW permit.
CMI'S APPLICATION DOES NOT CONTAIN ALL THE INFORMATION REQUIRED BY DISTRICT RULES
As discussed in greater detail above, CMI's application is incomplete in several material respects although accepted and processed by District staff. CMI did not submit an application for an MSSW permit, it did not submit a mining plan with sufficient information regarding wetlands and dewatering to allow establishment of adequate setbacks, nor has it provided the required information for agricultural use permits. And, because of the failure to submit adequate dewatering information, the required analysis of impact to wetlands has not been done. For each of the above omissions, the District has allowed CMI to postpone submission of the required information until after the permit has been issued. The technique was to incorporate permit conditions which require the submission of the information at a later date. It is inappropriate for the District to issue a permit without having all the information required by its regulations to determine if the Applicant has provided reasonable assurances. Rule 40D-2.101, (1), (6), (7), F.A.C. Thus, the District may not issue a permit if the Applicant has not supplied the information the District has deemed necessary by its regulations to provide the requisite reasonable assurances. Metropolitan Dade County v. Coscan Florida, Inc., 17 FLW 2341 (Fla. 3rd DCA, October 13, 1992), Osceola County v. St. Johns River Water Management District, supra.
In light of the above omissions, the proposed issuance of CMI's permit cannot stand. This statute mandates denial because the District's regulation requires submission of all required information before a permit may be issued.
CMI HAS FAILED TO DEMONSTRATE THAT THE QUANTITIES OF WATER IT PROPOSES TO WITHDRAW FROM THE AQUIFERS WILL UTILIZE THE LOWEST WATER QUALITY THE APPLICANT HAS THE ABILITY TO USE; WILL INCORPORATE CONSERVATION MEASURES; WILL INCORPORATE REUSE MEASURES TO THE GREATEST EXTENT PRACTICABLE.
CMI has the burden of proving that it has incorporated reuse measures to the greatest extent practicable. Rule 40D-2.301(1), F.A.C. The evidence has established the likelihood that CMI could reduce ground water pumping for both sealing wells and for the amine flotation process by the use of recylced water. Section 4.11 of the Basis of Review at page B-40, requires that:
"Applicants shall demonstrate whether reclaimed water is available and appropriate for reuse and shall incorporate reuse of reclaimed water to the greatest extent practicable. In determining whether an Applicant meets this criterion, the District shall consider whether the use is economically, environmentally and technically feasible."
CMI has done no studies whatsoever on this issue. Rather, it appears that CMI has affirmatively avoided or ignored opportunities to reduce its usage of deep well water by recycling. Consequently, CMI has failed to demonstrate that its proposed water use will incorporate reuse measures to the greatest extent practicable.
CMI's proposal to use its discharge for agricultural purposes does not satisfy the requirement in this case: (1) CMI has failed to provide any viable plans to demonstrate it will actually be able to find an agricultural use for the water. (2) the use proposed by CMI, irrigation of pasture, is generally not considered by the District to be a beneficial use of water. (Basis of Review at B-20.) (3) use of the water to irrigate presently unirrigated pasture will not result in a reduction of the amount of water ultimately pumped from the aquifer as recycling the water within the industrial system would.
CMI's failure to incorporate reclaimed water to the greatest extent practicable also results in a failure to demonstrate that it will use the lowest quality of water the Applicant has the ability to use. Rule 40D-2.301(e), F.A.C.
Furthermore, "reasonable demand" is demonstrated by supplying an accurate water balance to the District. (Basis of Review, Section 3.5 at B-24- 25.) The water balance is required to include all sources of water and specifically includes collected rainfall. (Id. at 2 on B-25.) As noted in the findings of fact, CMI did not include any amounts in its water balance from rainfall collected from disturbed areas. But CMI is not free to just let stormwater run off from its disturbed areas. CMI has failed to include between
1.8 and 5.4 mgd in its water balance. This is a significant amount of input into the system and will result in even greater amounts to discharge. In
addition, CMI has failed to account in its water balance, for changes in water needs caused by variability in the ore body, production schedules and market conditions as required by section 3.5 at B-24. Consequently, the water balance submitted by CMI is insufficient to demonstrate reasonable demand.
CMI has not demonstrated that its proposed use will not cause quantity or quality changes which adversely impact the water resources, including both surface and ground waters. Rule 40D-2.301, F.A.C. Neither has it demonstrated that it will not adversely impact an existing legal withdrawal. Id. at (i). CMI has not demonstrated that the seepage from the MWSA will not cause changes that adversely affect the quality of the water in the Big Slough. The only analysis of the seepage was a quick calculation which revealed that sulfate levels will be twice the accepted drinking water standard. No analysis was done concerning TDS or any other pollutants that might be in the MWSA as a result of the mining process. Similarly, no analysis was made of the potential for dewatering to adversely affect the quantity of water either in the Big Slough, Horse Creek or any of the other tributaries of the Peace River. With analyses showing potential draw downs of up to seven feet, such an analysis should be done. In particular, the City of North Port is extremely susceptible to changes in the quantity and quality of the water in the Big Slough. Excessive TDS and sulfates are serious problem that will be exacerbated by any increase of the two pollutants or any appreciable reduction in the flow to the Big Slough during low flow periods.
In addition, CMI's proposed collection of rainfall could have adverse effects on the water resources and could interfere with North Port's existing use. Consumptive use is defined in the Basis of Review as "any use of fresh or saline water which reduces the supply from which it is withdrawn or diverted." (Basis of Review, Glossary, vi.) CMI will be using collected rainfall it diverts from the Big Slough watershed. Thus, the collection of rainfall must be analyzed as a part of the consumptive use permit. MSSW permit review is not equipped to determine whether the collection of rainfall will result in interference with an existing legal user. This is particularly true for phosphate mines since the District's review is limited.
CMI HAS NOT PROVIDED REASONABLE ASSURANCES THAT WETLANDS WILL NOT BE ADVERSELY AFFECTED
The Basis for Review provides that Mining and Dewatering use Applicants must submit to the District a mine plan which corresponds to the term of the permit. It further requires submission of an updated mine plan should any changes to dewatering activities impact wetlands. (Basis of Review at B-34, section 4.2 A 3.) The District's consistent interpretation of this rule as set forth in the findings of fact, is that a mine plan is required to be submitted as a part of the water use application. It should contain information identifying all wetlands on site and sufficient information about each mine pit to be dug during the permit term to determine the proper setbacks required to protect wetlands. CMI did not submit a mine plan; therefore, the required analysis of the proper setbacks could not be done.
The analysis of the dewatering impacts to wetlands for an "average" mine cut is inconsistent with District regulations. Nevertheless, District staff claimed that their incomplete analysis validated the 660 foot setback. To the contrary, even taking the District's analysis at its face value, it showed that at 660 feet from a mine cut the water table draw down would exceed the 1 foot presumption in the Basis of Review. When draw downs exceed one foot at wetlands, performance standards established by the District require analysis of
several critical factors including: the deviation of the normal range of wetland water levels, the deviation of wetland hydroperiods, and impairment of habitat functions with special emphasis on threatened and endangered species. (See Basis of Review at B-34, section 4.2 A 4 and 5.) When pressed, District staff admitted that their belated analysis showed that the 660 foot setback was insufficient to provide the required reasonable assurances, and despite the incontrovertible evidence with respect to draw down levels resulting from dewatering, the required wetland analysis was not done.
The District's rules for mining and dewatering recognize that variability in the ore body affects water needs and requires the Applicant to account for this variation. (Basis of Review, section 3.5 at B-24.) In addition, the District's "Withdrawal Impact Analysis", provides that; "Dewatering Activities will be analyzed based on maximum dewatering levels." SWFWMD, Water Use Information Manual at C-3. The information relied upon by CMI and the District to make dewatering calculations indicates that during the term of the permit, the depth of the ore body and; therefore, the depth of the mine cuts, will vary between 20 and 37 feet. The evidence established that draw down impacts increase with the depth of the mine cut. In this case, at 37 feet, the evidence indicates that draw downs at 660 feet could reach seven feet. The only way that modeling the effects of a single mine cut could be consistent with District regulations and sufficient to provide the requisite reasonable assurances for wetland protection, is if the District used the maximum dewatering depth of 37 feet. Because the District did not, reasonable assurances are lacking.
Additionally, the procedure for analyzing draw down levels requires that dewatering impacts be combined with surficial impacts predicted for pumpage from wells. SWFWMD, Water Use Permit Information Manual, section 4.2 5, at B-
35. It is incontrovertible that CMI's proposed groundwater use will result in some draw downs in the surficial aquifer; and small isolated wetlands on the mine site could be adversely affected by draw downs of less than one foot. Nevertheless, no combined analysis was performed.
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Governing Board of Southwest Florida Water Management
District enter a Final Order DENYING the issuance of a Water Use Permit to the
Applicant, CMI.
DONE and ENTERED this 20th day of April, 1993, in Tallahassee, Florida.
DANIEL M. KILBRIDE
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 1993.
APPENDIX
The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties.
Proposed findings of fact submitted by Petitioner.
Accepted in substance: paragraphs - 13, 14, 15, 21, 24, 31, 35, | 38, 70, |
71, 73, 75, 91, 97, 100, 104, 105, 114, 115, 116, 125, 126, 127, 128, | and 129. |
Rejected as subsumed or irrelevant and immaterial: paragraphs - | 1, 2, 3, |
4, 5, 6, 7, 8, 9, 10, 11, 12, 16, 17, 19, 20, 22, 23, 25, 27, 28, 29, | 30, 33, |
34, 36, 37, 37A, 39 40, 43, 44, 45, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58,
59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 72, 74, 76, 77, 78, 79, 80, 81, 82, 83,
84, 85, 86,87, 92, 93, 94, 95, 96, 98, 99, 101, 102, 103, 106A, 106, 107, 108,
109, 110, 111, 112, 113, 117, 120, 121, 122, 123, 124, 130, 131, 132, 133, and
134.
Rejected as against the greater weight of the evidence: paragraphs - 18, 26, 32, 41, 42, 46 (omitted), 47 (omitted), 69, 88 (omitted), 89 (omitted), 90
(omitted), 118 (omitted), 119 (omitted), and 135 (omitted).
Proposed findings of fact submitted by Petitioner, Charlotte County. Accepted in substance: paragraphs - 1, 2, 7, 18, 19, 20, 22, 25, 28, 29,
36, 40, 41, 51, 59, and 62.
Rejected as argument, subsumed or irrelevant and immaterial: paragraphs - 3, 4, 5, 6, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 21, 23, 24, 26, 27, 30, 31,
32, 33, 34, 35, 37, 38, 39, 42, 45, 46, 47, 48, 49, 50, 52, 53, 54, 55, 56, 57,
58, 60, and 61.
Rejected as hearsay: paragraphs - 43 and 44.
Proposed findings of fact submitted by Petitioner, City of North Port. Accepted in substance: paragraphs - 1, 2, 3, 5, 6, 7, 9, 19, 20, 21, 22,
24(in part), 25, 26, 27, 28, 29, 30, 31, 32, 34, 35, 36, 37, 38, 39, 40, 41, 42,
45, 47, 48, 49(in part), 50, 51, 52, 53, 54, 56, 57(in part), 58, 59, 60, 61,
63(in part), 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 78, 79, 80, 83, 84, 85,
86(in part), 87, 92, 93, 95, 96, 99, 104, 107, 108(in part), 109(in part), 112,
113, 114, 115, 116, 120, 122, 123, 126, 138, 139, 140, 141, 142, 143(in part),
144, 150, 153, 154, 155, 156, 159, 167, 168, 170, 171, 172, 173, 176, 177, 179,
180, 187, 193, 194, 195, 197, 198, 199, 200, 201, 202, 204, 205.
Rejected as argument, subsumed or irrelevant and immaterial: paragraphs - 4(contained in Preliminary Statement), 8, 10, 11, 12, 13, 14, 15, 16, 17, 18,
23, 24(in part), 33, 43, 44, 46, 49(in part), 55, 57(in part), 62, 63(in part),
64, 76, 77, 81, 82, 86(in part), 88, 89, 90, 91, 94, 97, 98, 100, 101, 102, 103,
105, 106, 108(in part), 109 (in part), 110, 111, 117, 118, 119, 121, 124, 125,
127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 143(in part), 145, 146,
147, 148, 149, 151, 152, 157, 158, 160, 161, 162, 163, 164, 165, 166, 169, 174,
175, 178, 181, 182, 183, 184, 185, 186, 188, 189, 190, 191, 192, 196, 203, 206,
207, 208, 209, 210, 211, 212, 213, 214, 215, 216, 217.
Proposed findings of fact submitted by Respondent/Petitioner Consolidated Minerals, Inc. and Southwest Florida Water Management District.
Accepted in Substance: paragraphs - 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 14,
17, 18, 19, 20, 21, 22(in part), 23, 24, 25(in part), 26, 27(in part), 28, 29(in
part), 32, 33(in part), 39, 40, 41, 42, 43, 44, 45, 46, 47, 49, 50, 52(in part),
53, 54, 55, 56, 57(in part), 58, 62, 71, 82, 85, 87, 88, 91, 92(in part), 93,
94(in part), 95(in part), 96(in part), 97(in part), 100(in part), 101, 115, 119, 120, 123, 124(in part), 125(in part), 126(in part), 127(in part), 130(in part), 133(in part), 137, 138(in part), 139, 145.
Rejected as argument, subsumed, or irrelevant and immaterial: paragraphs - 12, 13, 15, 16, 31, 36, 37, 38, 48, 51, 52(in part), 57(in part), 59, 60, 63,
80, 81, 83, 84, 86, 90, 94(in part), 105, 106, 107, 108, 109, 110, 111, 112,
113, 114, 116, 117, 118, 124(in part), 126(in part), 127(in part), 130(in part),
134, 135, 136, 138(in part), 140, 141, 142, 143.
Rejected as against the greater weight of evidence: paragrahs - 22(in part), 25(in part), 27(in part), 29(in part), 30, 33(in part), 34, 35, 61, 64,
65, 66, 67, 68, 69, 70, 72, 73, 74, 75, 76, 77, 78, 79, 89, 92(in part), 95(in
part), 96(in part), 97(in part), 98, 99, 100(in part), 102, 103, 121, 122,
125(in part), 128, 129, 131, 132, 133(in part), 144.
Proposed findings of fact submitted by Petitoner, Environmental Confederation of Southwest Florida, Inc.
Accepted in substance: paragraphs - 1, 2, 3, 4 6, 7, 17, 22, 26, 27, 28,
29, 30, 33(in part), 34, 35, 39(in part) 41, 42, 43, 45, 48, 53, 56, 57, 59, 60,
61, 62, 71, 73, 80, 81, 82, 85, 86, 87, 92(in part), 106, 107, 110, 112, 113,
114, 115, 116, 117, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132,
133, 134, 135, 136, 137, 138, 139(in part), 140, 141, 142, 143, 144, 145, 148,
149, 150, 151, 152, 154, 155, 157, 158, 162, 163, 164, 165.
Rejected as argument, subsumed, or irrelevant and immaterial: paragraphs - 5, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18, 19, 20, 21, 23, 24, 25, 31, 32 33(in
part), 36, 37, 38, 39(in part), 46, 47, 49, 50, 51, 52, 55, 58, 63, 64, 65, 66,
67, 68, 70, 72, 74, 75, 76, 77, 78, 79, 83, 84, 88, 89, 90, 91, 92(in part), 93,
94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 108, 109, 111, 118, 119,
120, 146, 147, 153, 156, 159, 160, 161, 166, 167, 168.
Rejected as against the greater weight of evidence: paragraphs - 44, 54, 69, 139(in part).
COPIES FURNISHED:
Rory C. Ryan, Esquire Roger W. Sims, Esquire HOLLAND & KNIGHT
Suite 2600
200 S. Orange Avenue
P. O. Box 1526 Orlando, Florida 32802
Vivian Arenas, Esquire Assistant General Counsel Southwest Florida Water
Management District 2379 Broad St.
Brooksville, Florida 34609
Mr. Alan R. Behrens Route 2, Box 725-A-32 Arcadia, Florida 33821
Matthew G. Minter, Esquire County Attorney
18500 Murdock Cr.
Port Charlotte, Florida 33948-1094
David M. Levin, Esquire ICARD, MERRILL, CULLIS, TIMM,
FUREN & GINSBURG PO Box 4195
Sarasota, Florida 34237
Kenneth B. Wright, Esquire Sierra Club Legal Defense Fund PO Box 1329
Tallahassee, Florida 32302
Peter G. Hubbell Executive Director 2379 Broad Street
Brooksville, Florida 34609-6899
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to the Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning their rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
=================================================================
AGENCY FINAL ORDER
=================================================================
BEFORE THE GOVERNING BOARD OF THE SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT
ALAN R. BEHRENS,
Petitioner,
v. ORDER NO. SWF 94-107
DOAH CASE NO. 92-953 CONSOLIDATED MINERALS, INC. Water Use Permit
and SOUTHWEST FLORIDA WATER Application No. 200103.02 MANAGEMENT DISTRICT
Respondents.
/ CHARLOTTE COUNTY, FLORIDA,
Petitioner,
v.
CONSOLIDATED MINERALS, INC. and SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT,
Respondents.
/ CITY OF NORTH PORT, FLORIDA,
Petitioner,
v.
CONSOLIDATED MINERALS, INC. and SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT,
Respondents.
/ CONSOLIDATED MINERALS, INC.
Petitioner,
v.
SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT,
Respondent.
/ ENVIRONMENTAL CONFEDERATION
OF SOUTHWEST FLORIDA, INC.,
Petitioner,
v.
CONSOLIDATED MINERALS, INC. and SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT,
Respondents.
/
FINAL ORDER
This cause was heard by the Governing Board of the Southwest Florida Water Management District (the District) pursuant to Section 120.57, Florida Statutes (F.S.), for the purpose of considering the Recommended Order of the Hearing Officer, City of North Port's Motion to Strike and Response to the District's Memorandum in Opposition to Certain Recommended Conclusions of Law, City of North Port's Motion to Strike Consolidated Minerals, Inc.'s (CMI) Memorandum Regarding the Recommended Order's Conclusions of Law, Environmental Confederation of Southwest Florida's (ECOSWF) Objections to the District's Memorandum in Opposition to Recommended Conclusions of Law, CMI's Memorandum of Law Regarding the Recommended Orders' Conclusions of Law and for the purpose of issuing a Final Order in the above-styled proceeding.
On April 20, 1993, the Hearing Officer submitted to all parties a Recommended Order, a copy of which is attached hereto and incorporated herein by reference as Exhibit "A". Pursuant to Section 120.57(1)(b)9, F.S., and Rule
40D-l.564, Florida Administrative Code, the parties were entitled to submit written exceptions to the Recommended Order within 15 days of the date of the Recommended Order. The parties did not timely file Exceptions to the Recommended Order.
The Governing Board has reviewed the Recommended Order and has considered all memoranda and arguments of respective counsel as to the Conclusions of Law and any relevant law. Those preliminary portions of the Recommended Order regarding date and place of hearing, appearances entered at the hearing, Statement of the Issue and Preliminary Statement are hereby adopted and incorporated herein by reference.
FINDINGS OF FACT
The Governing Board hereby adopts and incorporates by reference the Findings of Fact set forth in the Recommended Order.
CONCLUSIONS OF LAW
The Governing Board hereby adopts and incorporates by reference Conclusions of Law Numbers 131-158, 167-172, 174-176 set forth in the Recommended Order.
Pursuant to Section 120.57(1)(b)(10), F.S., the District in its Final Order may reject or modify the Conclusions of Law and interpretation of administrative rules in the Recommended Order.
The Governing Board hereby rejects Conclusions of Law Numbers 159-166 and
173 for the reasons stated in the District's Memorandum filed November 10, 1994, incorporated herein by reference and attached hereto as Exhibit "B".
WHEREFORE, based on the foregoing Findings of Fact and Conclusions of Law, it is hereby ordered that Water Use Permit Number 200103.02 is DENIED. It is further ordered that the City of North Port's Motion to Strike the District's Memorandum is denied and ECOSWF's Objections to the District's Memorandum are hereby denied. The City of North Port's Motion to Strike CMI's Memorandum as amended to include Objection Numbers 1 and 2 is hereby denied to the extent it is inconsistent with the District's Memorandum of Law.
DONE and ORDERED by the Governing Board of the Southwest Florida Water Management District this 30th day of November 1994, in Brooksville, Hernando County, Florida.
By: Joe L. Davis, Jr., Chairman
Attest: Sally Thompson, Secretary
Filed this 1st day of December,1994.
Louise Rigsby Agency Clerk
| Issue Date | Proceedings |
|---|---|
| Dec. 07, 1994 | Final Order filed. |
| Dec. 07, 1994 | (Edward B. Helvenston) Notice of Entry of Final Order; Final Order with exhibits filed. |
| Jun. 07, 1993 | (SFWMD) Order Denying Motions and Closing File filed. |
| Apr. 29, 1993 | Letter to DMK from Joseph H. Russell (re: Recommendation) filed. |
| Apr. 23, 1993 | Letter to P. Hubbell from D. Lambert (RE: enclosing sheet inadvertly left out of exhibits) filed. |
| Apr. 20, 1993 | Recommended Order sent out. CASE CLOSED. Hearing held 9/14-24/92. |
| Dec. 17, 1992 | (Petitioner) Notice of Supplemental Authority filed. |
| Nov. 23, 1992 | CC Signature Page for filing in Joint Proposed Recommended Order filed. (From Richard Rschantz) |
| Nov. 17, 1992 | Petitioner City of North Port, Florida`s Proposed Findings of Fact and Conclusions of Law; Proposed Findings of Fact filed. |
| Nov. 16, 1992 | Petitioner City of North Port, Florida`s Proposed Findings of Fact and Conclusions of Law filed. |
| Nov. 16, 1992 | Joint Proposed Recommended Order Submitted by Consolidated Minerals, In., and Southwest Florida Water Management District filed. |
| Nov. 16, 1992 | Proposed Recommended Order w/Appendix-A filed. (From Kenneth B. Wright) |
| Nov. 16, 1992 | (unsigned) Proposed Recommended Order filed. (From Matthew G. Minter) |
| Oct. 26, 1992 | Transcript (16 Vols) filed. |
| Sep. 28, 1992 | Copies of Display Chart used in Testimony Statement of September 22, 1992 filed. (From George D. Mullen) |
| Sep. 18, 1992 | CASE STATUS: Hearing Held. |
| Sep. 18, 1992 | Order of Consolidation sent out. (Consolidated cases are: 92-0953, 92-0954, 92-0955, 92-0956, 92-0957) |
| Sep. 18, 1992 | Case No/s 92-953, 92-954, 92-955, 92-956, 92-957: unconsolidated. |
| Sep. 14, 1992 | Petitioner`s, Alan R. Behrens, Notice of Service of Answers to Respondent`s, Consolidated Minerals, Inc., First Set of Interrogatories and First Request for Production of Documents filed. |
| Sep. 10, 1992 | Order Regarding Respondent`s, Consolidated Mineral, Inc., Motion for Clarification of Procedures, Petitioner`s, Charlotte County, Motion for Continuance, and Related Matters sent out. (motion for continuance,denied) |
| Sep. 10, 1992 | Order of Dismissal sent out. (for Intervenor Peace River/Manasota Regional Water Supply Authority) |
| Mar. 17, 1992 | Order of Consolidation, Order and Order Establishing Prehearing Procedure sent out. (Consolidated cases are: 92-0952, 92-0953, 92-0954, 92-0955, 92-0956, 92-0957; motion to Intervene by Peace River/ Manasota Regional Water Supply Authority is granted; |
| Mar. 12, 1992 | Petitioners, Environmental Confederation of Southwest Florida, Inc., ET AL. Motion to Strike Respondent Consolidated Minerals Inc. Motion for More Definite Statement filed. |
| Mar. 10, 1992 | Petitioner, Alan R. Behrens, Motion to Strike filed. |
| Mar. 09, 1992 | Joint Response to Initial Order and Motion for Consolidation filed. |
| Mar. 05, 1992 | Respondent`s, Consolidated Minerals, Inc., Memorandum in Opposition to Petitioners, City of North Port, Florida, Motion to Strike filed. |
| Mar. 02, 1992 | Petitioner, City of North Port, Florida`s Motion to Strike filed. |
| Feb. 20, 1992 | Respondents, Consolidated Mineral's, Inc., Motion for More Definite Statement filed. |
| Feb. 18, 1992 | Initial Order issued. |
| Feb. 12, 1992 | Notice of referral; Petition for Formal Administrative Hearing +other supporting papers filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 30, 1994 | Agency Final Order | |
| Apr. 20, 1993 | Recommended Order | Applicant for water use permit failed to provide reasonable assurances that use will not cause adverse impact to water resources and environment. |
