STATE OF FLORIDA ; ff E DIVISION OF ADMINISTRATIVE HEARINGS ” Sep ly fh) 4 MIAMI CORPORATION and Apel: M:9 VERGIE CLARK, 8 tnisn Or e : ARI yp Petitioners, DOAH Case Nos. 05-0344 S 05-2607 vs. ; 05-2940 CITY OF TITUSVILLE and SJRWMD F.O.R. 2004-88 ST. JOHNS RIVER WATER 2005-40 MANAGEMENT DISTRICT, 2005-52 Respondents. / FINAL ORDER Pursuant to notice, the Division of Administrative Hearings, by its designated Administrative Law Judge, the Honorable J. Lawrence Johnson (“ALJ”), heid a formal administrative hearing in the above-styled case on December 11-15 and 18-21, 2006, and January 16-19 and 22-26 and April 4-6 and 9-10, 2007, in Titusville, Florida. On July 31, 2007, the ALJ submitted to the St. Johns River Water Management District and all-other parties to this proceeding a Recommended Order, a copy of which is attached hereto as Exhibit A. Petitioners Miami Corporation and Vergie Clark (collectively “Petitioners”) and Respondents St. Johns River Water Management District (“District”) and City of Titusville (“City”) timely filed Exceptions to the Recommended Order. The parties each timely filed Responses to Exceptions. This matter then came before the Governing Board on September 11, 2007, for final agency action and entry of a Final Order. A. STATEMENT OF THE ISSUE ~ The general issue before the Governing Board is whether to adopt the Recommended Order as the District’s Final Order, of to reject or modify the Recommended Order in whole or part, under Section 120.57(1)(1), Florida Statutes (“F.S.”). The specific issue is whether the City’s consumptive use permit (“CUP”) application number 99052 meets the conditions for issuance of a permit as set forth in Section 373, F.S., Chapter 40C-2, Florida Administrative Code (“F.A.C.”), and the Applicant's Handbook: Consumptive Uses of Water (February 15, 2006)(“A.H.”). The CUP application is for the use of 1,003.75 million gallons per year (“mgy”) (2.75 million gallons per day [“mgd”] annual average) of groundwater from the Upper Floridan aquifer at the proposed Area IV Wellfield for public supply, and 64.98 mgy (0.18 mgd average) of groundwater from the surficial aquifer for wetland hydration and aquifer recharge. In the Recommended Order, the ALJ recommended issuance of a CUP for the use of 0.75 mgd annual average of groundwater from the Upper Floridan aquifer at the Area IV Wellfield for public supply and for 0.18 mgd annual average of groundwater from the surficial aquifer for wetland hydration and aquifer recharge. In recommending a lower allocation for public supply than that requested in the application, the ALJ recommended that the combined annual average for the Area Il, Area Ill and Area IV Wellfields be reduced to 5.2 mgd in 2009 and 2010 in Other Condition 5 of the permit and that the combined maximum daily rates for these three wellfields be appropriately lowered in Other Condition 9. Conditions to implement the ALJ’s recommendation have been proposed by District staff for the Governing Board’s consideration. B. | STANDARD OF REVIEW The rules regarding an agency’s consideration of exceptions to a recommended order are well established. The Governing Board is prescribed by Section 4120.57(1)(I), F.S., in acting upon a recommended order. The ALJ, not the Governing Board, is the fact finder. Goss v. Dist. Sch. Bd. of St. Johns County, 601 So.2d 1232, 1235 (Fla. 5h DCA 1992); Heifetz v. Dep't of Bus. Regulation, 475 So.2d 1277, 1281-82 (Fla. 18 DCA 1997). A finding of fact may not be rejected or modified unless the Governing Board first determines from a review of the entire record that the finding of fact is not based upon competent substantial evidence or that the proceedings on which the finding of fact was based did not comply with essential requirements of law. Section 120.57(1)(I), F.S. “Competent substantial evidence” is such evidence as is sufficiently relevant and material that a reasonable mind would accept such evidence as adequate to support the conclusion reached. Perdue v. TJ Palm Associates, Ltd., 755 So.2d 660 (Fla. 4" DCA 1999). The term “competent substantial evidence” relates not to the quality, character, convincing power, probative value or weight of the evidence, but refers to the existence of some quantity of evidence as to each essential element and as to the legality and admissibility of that evidence. Scholastic Book Fairs v. Unemployment Appeals Commission, 671 So.2d 287, 289 (Fla. 5th DCA 1996). lf a' finding is supported by any competent substantial evidence from which the finding could be reasonably inferred, the finding cannot be disturbed. Freeze v. Dep't of © Business Regulation, 556 So.2d 1204 (Fla. 5" DCA 1990); Berry v. Dep't of Envil. Regulation, 530 So.2d 1019 (Fla. 4" DCA 1998). The Governing Board may not reweigh evidence admitted in the proceeding, may not resolve conflicts in the evidence, may not judge the credibility of witnesses or otherwise interpret evidence anew. Goss, 601 So.2d at 1235; Heifitz, 475 So.2d at 1281-82; Brown v. Criminal Justice Standards & Training Comm’n., 667 So.2d 977 (Fla. 4" DCA 1996). The issue is not whether the record contains evidence contrary to the findings of fact in the recommended order, but whether the finding is supported by any competent substantial evidence. Florida Sugar . Cane League v. State Siting Bd., 580 So.2d 846 (Fla. 15 DCA 1991). Finally, the Governing Board is precluded from making additional or supplemental findings of fact. Florida Power & Light Co. v. State of Florida, Siting Board, 693 So.2d 1025, 1026-27 (Fla. 1* DCA 1997); Boulton v. Morgan, 643 So.2d 1103 (Fla. 4" DCA 1994). With respect to conclusions of law in the recommended order, the Governing Board may reject or modify the conclusions of law over which it has substantive jurisdiction and interpretations of administrative rules over which it has substantive jurisdiction, provided the reasons for such rejection or modification are stated with particularity and the Governing Board finds that such rejection or modification is as or more reasonable than the ALJ's conclusion or interpretation. Section 120.57(1)(I), F.S. in interpreting the term “substantive jurisdiction,” the courts have continued to interpret the standard of review as requiring deference to the expertise of an agency in interpreting its own rules and enabling statutes. See, e.g., State Contracting & Eng’ Corp. v. Dep't of Transp., 709 So.2d 607, 610 (Fla. 4s DCA 1998). The Governing Board lacks subject matter jurisdiction to overturn an ALJ’s rulings on procedural and evidentiary issues. Barfield v. Dep’t of Health, 805 So.2d 1008, 1012 (Fla. 1** DCA 2001) (the agency lacked jurisdiction to overturn an ALJ’s evidentiary ruling); Lane v. Dep't of Envtl. Protection, DOAH 05-1609 (DEP 2007) (the agency has no substantive jurisdiction over procedural issues, such as whether an issue was properly raised, and over an ALJ’s evidentiary rulings); Lardas v. Dep’t of Envtl. Protection, 28 F.A.L.R. 3844, 3846 (DEP 2005) (evidentiary rulings of the ALJ concerning the admissibility and competency evidence-are not matters within the agency's substantive jurisdiction). The Governing Board's authority to modify a recommended order is not dependent on the filing of exceptions. Westchester General Hospital v. Dept. Human Res. Servs., 419 So.2d 705 (Fla. 1st DCA 1982). However, when exceptions are filed, they become part of the record before the Governing Board. Section 120.57(1)(f), F.S. In the final order, the Governing Board must expressly rule on.each exception, except for any exception that does not clearly identify the disputed portion of the recommended order by page number or paragraph, that does not identify the legal basis for the exception, or that does not include appropriate and specific citations to the record. Section 120.57(1)(k), F.S. Thus, the Governing Board is not required to rule on an omnibus exception in which a party states that its exception to.a particular finding of-fact is also an exception to any portion of the Recommended Order where the finding of fact is restated or repeated. Similarly, an exception that simply refers to or attempts to incorporate by reference an exception to another finding of fact or conclusion of law fails to comply with the statutory requirements. C. EXCEPTIONS AND RESPONSES The Administrative Procedure Act provides the parties to an administrative hearing with an opportunity to file exceptions to a recommended order. Sections 120.57(1)(b) and (k), F.S. The purpose of exceptions is to identify errors in a recommended order for the Goveming Board to consider in issuing its final order. As discussed above in Section B (Standard of Review), the Governing Board may accept, reject, or modify the recommended order within certain limitations. When the Goveming Board considers a recommended order and exceptions, its role is like that of an appellate court in that it reviews the sufficiency of the evidence to support the ALJ's findings of fact and, in areas where the District has substantive jurisdiction, the correctness of the ALJ’s conclusions of law. In an appellate court, a party appealing a decision must show the court why the decision was incorrect so that the appellate court can rule in the appellant's favor. Likewise, a party filing an exception must specifically alert the Governing Board to any perceived defects in the ALJ’s findings, and in so doing the party must cite to specific portions of the record as support for the exception. John D. Rood and Jamie A. Rood v. Larry Hecht and Department of Environmental Protection, 21 F.A.L.R. 3979, 3984 (DEP 1999); Kenneth Walker and R.E. Oswalt d/b/a Walker/Oswalt v. Department of Environmental Protection, 19 F.A.L.R. 3083, 3086 (DEP 1997); Worldwide Investment Group, Inc. v. Department of Environmental Protection, 20 F.A.L.R. 3965,3969 (DEP 1998). To the extent that a party fails to file written exceptions to a recommended order regarding specific issues, the party has waived such specific objections. Environmental Coalition of Florida, Inc. v. Broward County, 586 So.2d 1212, 1213 (Fla. 1st DCA 1991). In addition to filing exceptions, the parties have the opportunity to file responses to exceptions filed by other parties. Rule 28-106.217(2), F.A.C. The responses are meant to’assist the Governing Board in evaluating and ultimately ruling on exceptions by providing the Governing Board with legal argument and citations to the record. D. RULINGS ON EXCEPTIONS Petitioners filed 103 exceptions, the District filed three exceptions and five proposed changes to permit conditions, and the City filed two exceptions to the ALJ’s Recommended Order. Each party filed a response to the other parties’ exceptions. In addition, Petitioners filed a response to the District's proposed changes to permit conditions. . Citations to page numbers in the transcript of the formal administrative hearing will be made by identifying the page number in the transcript (e.g.,T: 2253). Citations to exhibits admitted by the ALJ will be made by identifying the party that entered the exhibit followed by the exhibit number (e.g., Pet. Ex. 2). Citations to the. Recommended Order will be designated. by “RO” followed by the page number of the abbreviation “FOF” (Finding of Fact) or “COL” (Conclusion of Law) and paragraph number (e.g., RO, FOF 13). Citations to the District's Applicant’s Handbook: Consumptive Uses of Water (February 15, 2006) will be designated by the section number, followed by the abbreviation “A.H.” RULINGS ON PETITIONERS’ EXCEPTIONS Petitioners’ Exception No. 1 Petitioners take exception to a portion of FOF 15 on the grounds that itis not “supported by competent substantial evidence.” In support of their exception, they cite to evidence presented at the hearing and argue that:. The competent substantial evidence established that Area Il-is a healthy wellfield (Tr. 5753-5754), that Area Ill is also a healthy welifield (Tr. 5756-5757), that both show positive chloride concentration trends (Tr.5755-5757) and that, if properly managed, the combined safe yield of the Area II and Area Il! welifields is 6.5 mgd (which is the combined presently permitted allocation for those two wellfi ields). For the reasons described below, the Board finds that FOF 15 is based on competent substantial evidence and the exception is, therefore, rejected. FOF 15 states: For these reasons, it is not clear at this point in time whether it is possible to sustain more water production from Areas Il and III than the City has pumped in recent years. ; Stated another way, from the Board’s review of the record, the ALJ concluded there was insufficient evidence to warrant an affirmative finding that more water can be withdrawn from the Area I! and III wellfields than has been withdrawn in recent years. In FOF 4, the ALJ acknowledges the Petitioners’ contention that the “safe yield” (the quantity of water the City can withdraw without degrading the water resource) and the “reliable yield” (the quantity of water the City can dependably withdraw) of the Area Il and III wellfields are the currently permitted limits of 5.4 and 1.1 mgd, respectively. Petitioners presented evidence to support théir contention. (T:5717, 5796-98). However, evidence was also presented that pumping at the most recent historical water withdrawal levels © yields the most production that can be sustained from these wellfields without adverse water resource impacts (T:.2694-95) and that the current reliable yield of the two wellfields is significantly lower than the permitted allocation. (T:81-83). In FOF 13, which is supported by competent substantial evidence (T: 28-29, 33-35), the ALJ also found that there were limitations on the City’s ability to expand the reliable yield of the Area II wellfield. All of this evidence and other evidence in the record supports the . ALJ’s finding in FOF 15 that it is not clear whether it is possible to sustain more water production from Areas {I and {il than the City has pumped in recent years. (T:554-56, 2694-95; City Ex. 19). Petitioners’ Exception No. 2 Petitioners take exception to FOF 56 without stating a legal basis for the exception and, therefore, the Board need not rule on it. Section.120.57(1)(k), F.S. Nevertheless, the exception is rejected for the reasons set forth below. FOF 56 states: Petitioners’ expert, Mr. Drake, calculated-a per capita water use rate by averaging the actual rates for the most recent five years (2002-2006), which resulted .in a per capita water use rate of 89.09 gpd, and a projected demand of 4.74 mgd at the end of 2010. He also calculated a per capita water use rate for 2006, which came to 88.65 gpd, which would give a slightly lower projected . -demand of 4.72 mgd. Petitioners argue in this exception that the ALJ “fails to point out” that the calculations described in this finding, which were performed by Petitioner Miami Corporation's expert witness, “are consistent with and in compliance with A.H. 12.2.2, which describes how per capita daily water use shall be calculated.” Petitioners further assert that the “importance of this issue cannot be overemphasized because Petitioners’ expert was the only expert to rely upon the rule (A.H. 12.2.2) in his per capita use calculations...” Significantly, they do not except to any of the specific findings in FOF 56. 7 - This finding is supported by competent substantial evidence. (T: 5729-5733, Pet. Ex. 184). It is the province of the ALJ to resolve conflicts and weigh. the evidence for inclusion into the findings of fact, and the Board declines to make any additional findings of fact. Goss, 601 So.2d at 1235 (it is hearing officer's function to consider all evidence presented, resolve conflicts, judge credibility of witnesses, draw permissible inferences from the evidence, and reach ultimate findings of fact based on competent, substantial evidence). The ALJ has recommended an allocation based on Section 12.2, A.H. and the Board accepts that recommendation as explained in its ruling on District Exception No. 2 to COL 274. Petitioners reference Exception No. 3 to FOF 61, which was ruled upon elsewhere. Petitioners’ Exception No. 3 Petitioners take exception to FOF 61 on the grounds that it is not supported by competent substantial evidence. Further, they argue that the finding disregards their expert’s testimony of what Petitioners believe was the only calculation of per capita water use rate that is consistent with Section 12.2.2, A.H. For the reasons described below, the Board finds that FOF 61 is based on competent substantial evidence and the exception is, therefore, rejected. FOF 61 states: Those calculated water allocations — i.e., either the 4.94 mgd or the 5.2 mgd— would then be compared to the probable safe and reliable ‘yield of 4.5°mgd ‘from Areas Il and II to determine the deficit on an annual average basis. Allowing a “reasonable margin of error for the uncertainties of the predictions involved, a reasonable maximum annual average allocation for the proposed Area IV Wellfield would be 0.75 mgd. Notably, Petitioners have not taken exception to FOFs 12, 59 and 60, which provide the underpinnings for this finding. In FOF 12, the ALJ determined that the most production that can be sustained from the Area Il and Ill wellfields combined is 4.5 mgd on an annual average basis. This finding is supported by competent substantial evidence. (T: 2693-95). In FOF 59, the ALJ determined that the average water use rate for the period 1999-2006 would result in a per capita water use rate of approximately 92.8 gpd and a projected demand of approximately 4.94 mgd by December 31, 2010. In FOF 60, the ALJ found that if the City’s water allocation were based on demand during 2000, the 10 driest year on record, projected demand would be approximately 5.2 mgd on December. 31, 2010. Both projected demand figures are based on competent substantial evidence. (City Ex. 32; Pet. Ex. 184; T: 2329-30,5730-31, 5735-36). The ALJ then determined that, given the limitations on sustainable production of the Area Il and III wellfieids and given the projected water demand, a reasonable maximum annual average allocation for the Area IV wellifield would be 0.75 mgd. This determination is a reasonable inference from the previous findings of fact to which Petitioners did not take exception and which are supported by competent substantial evidence. Freeze, 556 So.2d at 1206 Berry v. Dep't of Envtl. Regulation, 530 So.2d 1019, 1021 (Fla. 4" DCA 1998). Although the ALJ rejected the expert opinions of the Respondents, he was not then obligated to accept Petitioners’ expert opinion on that subject. An ALJ need not accept an expert opinion over even a lay person’s opinion so long as there is objective evidence (like the 2000 water use data) to support the ALJ's finding. Thompson v. Department of Children and Families, 835 So.2d 357 (Fla. 5th DCA 2003) (the hearing officer, as the trier of fact, may accept or reject all or any part of an expert's testimony, even if it is uncontroverted). Finally, throughout this proceed ing and in this exception, Petitioners argue that Section 12.2.2, A.H., requires that per capita daily water usage for public supply systems be calculated using one of two methods. This argument is not a basis for rejecting this FOF. The Board notes, however, that it disagrees with Petitioners’ contention. An applicant for a CUP is not limited to calculating per capita daily water usage using the two methodologies described in Rule 12.2.2, A.H., for calculating historical average per capita daily water use. This rule provides that “[i]Jn some cases the historical demand patterns will not be appropriate for projection purposes. ... In such case, alternative per capita estimates may be appropriate and should be used, accompanied by appropriate documentation.” ‘Petitioners’ Exception No. 4 Petitioners take exception to FOF 63 on the grounds that this finding is “pure and total speculation and is not supported by competent substantial evidence.” ‘Further, Petitioners take exception to the Recommended Order's “failure to account in determining the sources of water available to the City, for (a) the Taylor Creek Reservoir Project, (b) the feasibility of a brackish groundwater or Upper Florida [sic] alternative or (c) the possibility of buying even more water from the city of Cocoa than the current bulk water agreement between the two cities currently reserves.” For the reasons described below, the Board finds that FOF 63 is based on competent substantial evidence and the exception is, therefore, rejected. FOF 63 states: For the past 12 years, the City of Titusville has been able to purchase water under a contract with the City of Cocoa to meet all of its demands, including any peak or emergency water demands. Under the take-or-pay provision in the contract currently in effect, the City must pay for 0.5 mgd and presumably would take and use at least that amount so long as the contract remains in effect. This would reduce the City’s projected water supply deficit through the end of 2010, and the City could rely on the Cocoa contract to cover any additional demand through the end of 2010 without Area IV. However, under the contract, the City can give notice on or before April 1 of the year in which it intends to terminate the contract effective October 1 of the same year. If a CUP for Area IV is issued, the City could terminate the current contract effective as early’as October 1, 2008. It also is possible that the contract could be negotiated so that its termination would coincide with the time when the Area IV welifield becomes operational if not n near October 1 of the year. 12 The bulk water contract between the City and the City of Cocoa, including amendments, was entered into evidence. (City Ex. 296, 306, 313). Under the ALJ's interpretation of the contract, the City can opt out of the contract before water from Area IV becomes available for use simply by providing timely notice of its intent to terminate the contract. A reasonable inference from his findings in this FOF is that the ALJ considers water from Cocoa to not be guaranteed. The Board cannot overturn the ALJ’s interpretation of the contract. Deep Lagoon Boat Club, Ltd. v. Sheridan, 784 So.2d 1140 (Fla. 2. DCA 2001) (Secretary correctly determined that he did not have authority to review legal determination not involving agency's area of expertise, but rather which required applying a legal concept typically resolved by judicial or quasi-judicial officers). Further, there is competent substantial evidence that the City could terminate the contract because the quantity of water provided to Titusville has been reduced over time (from 3 mgd annual average down to 0.5 mgd today). (City Ex. 296,. 306, 313; T:2330-38). It would be a reasonable inference that the amount of water provided to the City by contract could decline further. The issue of how and whether water available to the City from the City of Cocoa and other sources or projects must be taken into account in the review of the City's permit application for the Area IV Wellfield has been strongly contested throughout these proceedings. The amount of water available to the City from the City of Cocoa was considered in the review of this permit application in that proposed Other Condition 9 provides that “[i]n the event that the permittee receives water from the City of Cocoa for potable use, then the allocation for any year above shall be reduced to an amount 13 equivalent to the quality provided to the permittee by the City of Cocoa in that year.” (7:2741; City Ex. 291). In this exception, Petitioners also argue that FOF 63 fails to take into account, in determining the sources of water available to the City, two alternative water supply sources. Competent substantial evidence exists in the record to show that these projects are not currently available and will not be available by the end of 2010. (T: 124-25, 2432-39, 2451-54, 2855-61, 3492-93, 143-45, 640-42). Moreover, with regard to water that is to be used for direct human consumption or food preparation, the District's rules do not require the use of lower quality sources unless higher quality sources are unavailable to meet projected demands. Rule 40C-2.301(4)(g) F.A.C.; Section 10.3(g), A.H. Petitioners’ Exception No. 5 Petitioners take exception to FOF 65 on the grounds that this finding is not supported by competent substantial evidence. Specifically, Petitioners state “there is no competent substantial evidence that the City’s need in either 2009 or 2010 is 5.2 mgd” and that the finding “improperly speculates about future events, future filings and future determinations.” For the reasons described below, the Board finds that FOF 65 is based on competent substantial evidence and the exception is, therefore, rejected. FOF 65 states: Finally, as indicated, the existing CUP for Areas II and Ill is set to expire in February 2008. Although itis anticipated that the City will apply to renew the existing CUP for Areas !I and III, and that the District will approve renewal at some level, it is not clear how much production will be approved for Areas II and lil for the years 2009 and 2010. Meanwhile, the CUP proposed for Area IV provides that the combined annual groundwater withdrawals for Areas II, IH], and IV may not exceed 5.79 mgd for 2009 and 6.01 mgd in 2010. Based on the findings in this case, those figures should be reduced to no more than 5.2 mgd, 14 and it must be anticipated that a similar condition would be placed on any renewal of the existing CUP for Areas II and III as well. This finding is based on competent substantial evidence and by reasonable inferences therefrom. (T:542-44, 2329-30, 2806-07, 2825-26, 3229-30, 3474-75, 5735-36; City Ex. 32; Pet. Ex. 184). See also the Board's ruling on Petitioners’ Exception No. 3 to FOF 61. If a finding is supported by any competent substantial evidence from which the finding could be reasonably inferred, the finding cannot be disturbed. Freeze, 556 So.2d at 1206; Berry, 530 So.2d at 1201. Petitioners’ Exception No. 6 Petitioners take exception to FOF 67 for its failure to “note that the City did not undertake additional hydrogeologic investigations subsequent to 2001, but the hydraulic parameters utilized for the modeling submitted in support of the Application changed significantly.” The exception further argues that “tlhe ALJ erroneously limited Petitioners’ ability to explore during cross-examination of the City’s experts the inconsistencies between the aquifer parameters used in the different modeling scenarios.” Finally, the exception alleges that the Recommended ‘Order “fails to reconcile the differences between the hydraulic parameters in the multiple modeling versions prepared by the City’s consultants.” Petitioners do not explain the legal basis for the exception to this finding of fact, and therefore, the Board need not rule on it. Section 120.57(1)(k), F.S. Nevertheless, the exception is rejected for the reasons set forth below. FOF 67 states: Because there was insufficient information to adequately evaluate the whether proposed Area IV, which was located along the Florida East Coast Railway (FEC) Right-of-Way (ROW), could be used for that purpose, the City's consultant, 15 Barnes, Ferland and Associates (BFA), designed a drilling and testing program to collect site-specific information in order to characterize the groundwater quality, identify the thickness of the freshwater zone in the UFAS, and determine hydraulic parameters for the groundwater system. In addition, DRMP conducted an environmental assessment of the Area IV Wellfield and surrounding property. This FOF is supported by competent substantial evidence. (T:209-10, 654, 2106). To the extent that Petitioners seek to challenge an evidentiary ruling by the ALJ, the Board lacks jurisdiction to disturb this ruling. Barfield, 805 So.2d at 1012 (the agency lacked jurisdiction to overturn an ALJ’s evidentiary ruling); Lane, DOAH 05-1609 (the agency has no substantive jurisdiction over procedural issues, such as whether an issue was properly raised, and over an ALJ's evidentiary rulings); Lardas, 28 F.A.L.R. at 3846 (evidentiary rulings of the ALJ concerning the admissibility and competency evidence are not matters within the agency's substantive jurisdiction). To the extent that Petitioners are requesting the Board to make additional findings of fact, it may not, and declines to do so. Florida Power & Light, 693 So.2d at 1026-27; Boulton, 643 So.2d at 4005. Petitioners’ Exception No. 7 Petitioners take exception to FOF 68 on the grounds that this finding is uncorroborated hearsay and not supported by competent substantial evidence. For the reasons described below, the Board finds that FOF 68 is based on competent substantial evidence and the exception is, therefore, rejected. FOF 68 states: The drilling and testing program designed by BFA for the Area IV wellfield was similar to other hydrogeologic investigations conducted in the region with respect to the wellfields operated by the City of Edgewater, the City of New Smyrna Beach, the City of Ormond Beach, the Orlando Utilities Commission and Orange County. © : 16 This finding is supported by competent substantial evidence (T:242-243). During the administrative hearing, Patrick Bames, a professional geologist who testified on behalf of the City and is employed by the City’s consultant, Barnes Ferland and Associates (BFA), gave the following testimony: Q. Is the testing program that you implemented for the Area IV Welifield standard practice in your fields of expertise for evaluating the water supply potential for a new area? ; A. Yes, itis. Q. sit similar to testing programs that you have.implemented for other wellfields? A. Yes itis, Boh gi aoe Q. What other wellfield projects is this testing program similar to? A. it's similar to testing programs that I've been involved in.several_of the cities | mentioned earlier, such as Edgewater, Utilities Commission, New Smyrna Beach, Ormond Beach, similar to programs that we've implemented for Orlando Utilities Commission, Orange County, to name some. Petitioners did not object to this testimony and, even if they had, the Board would lack substantive jurisdiction to confirm, modify or overrule a procedural or evidentiary ruling of the ALJ. Barfield, 805 So.2d at 1012 (the agency lacked jurisdiction to overturn an ALJ's evidentiary ruling); Compass Envtl., Inc. v. Dep’t of Envtl. Protection, 27 F.ALR. 3249, 3258 (DEP 2005) (even if a timely objection was made, the agency lacks jurisdiction over an ALJ’s admissibility ruling). To the extent that.Petitioners take exception to this finding of fact for its faiture to include certain findings, the Board notes.that this is not a legal basis for rejecting a finding. The Board is only authorized to reject or modify findings of fact if after review of the entire record, there is no competent substantial evidence from which the finding could reasonably be inferred. It.is precluded from making additional findings. Section 120.7, F.S. Florida Power & Light, 693 So.2d at 1026-27; Boulton, 643 So.2d at 1105. 17 Finally, the Board disagrees with Petitioners that adopting this finding would create a “one size fits all standard for hydrogeologic investigations.” It is simply a finding of fact supported by competent substantial evidence. Petitioners reference their Exception No. 6 to FOF 67, which was ruled upon elsewhere. — Petitioners’ Exception No. 8 Petitioners take exception to FOFs 69 and 70 for their failure to “reconcile discrepancies” between two separate exhibits, a drilling and testing report and a report related to time domain electromagnetic mapping (TDEM), and they point out that “contrary to the ALJ's Finding, the TDEM study referenced was not conducted:as part of the drilling and testing program for the Area IV Wellfield.” Petitioners do not explain the legal basis for the exception to these findings of fact, and therefore, the Board need not rule on it. Section 120.57(1)(k), F.S. Nevertheless, the exception is rejected for the _ reasons set forth below. FOF 69 States: - The drilling and testing program for the Area IV Wellfield included Time-Domain Electromagnetic Mapping ("TDEM'") performed by SDII Global, a constiltant retained by the District. TDEM is not typically used for the hydrogeologic investigation of a new welifield. The TDEM technique involves estimating the depth to the 250 mg/l and 5,000 mg/l chloride concentration in the groundwater system using electrical resistivity probes. The technique was applied ‘at four locations along the FEC” Right-of-Way. FOF 70 states: In addition to the TDEM study, BFA installed three test production wells along the FEC ROW, collected lithologic samples with depth, performed borehole aquifer performance and step drawdown tests at two test sites and recorded water quality with depth through grab and packer samples. 18 It is the ALJ’s statutory function to sit as the fact finder and make findings resolving conflicting evidence. Further, as noted in the ruling on the previous exception, the Board is only authorized to reject or modify findings of fact if after review of the entire record, there is no competent substantial evidence from which the finding could reasonably be inferred. Thus, to the extent that Petitioners are asking the Board to resolve what they believe is conflicting evidence or to address what they believe is an omission, the Board declines to do so. Finally, there was competent substantial evidence to support the ALJ's finding that the drilling and testing program for the Area IV wellfield included TDEM. (T: 244-50, 900-13, 2699-2700; City Ex. 68, 209, 305). In fact, during the administrative hearing, Petitioners objected to this testimony as misleading for the same reason presented in this exception, and their objection was overruled by the ALJ. Petitioners reference their Exception No. 29 to FOF 124, which was ruled upon elsewhere. . Petitioners’ Exception No. 9 Petitioners take exception to FOF 77 on the grounds that the ALJ “failed to reconcile multiple years of conflicting depictions in the USGS reports and failed to address the historical records that indicate a shift in groundwater flow patterns during dry conditions.” Petitioners further contend that the ALJ failed to make specific findings regarding “the extent to which the limited data accumulated by the City can be interpolated beyond boundaries of the abandoned railroad right-of-way.” Finally, Petitioners contend that there is no competent substantial evidence to “establish the reliability and extent to which the limited measurements by the City can be used to 19 "establish long-term groundwater flow direction in the region” and that acceptance of this finding would “establish a precedent that an applicant can disregard the ‘cumulative historical understandings of groundwater flow without detailed, long-term studies. “ For the reasons described below, the Board rejects this exception. FOF 77 states: The site-specific hydrogeologic data collected by BFA as part of the drilling and testing program verified the groundwater basin and flow direction shown in Figure 15 of City Exhibit 523. This finding is supported by competent substantial evidence. Expert witness Barnes testified that the groundwater basin as depicted in Figure 15 of City Exhibit 523 matched the field observations taken by his firm. (T:995-96,1000-04). The decision to bélieve one expert over another is left'to the ALJ as the fact finder and cannot be altered absent a complete lack of competent substantial evidence from which the finding could be reasonably inférred. Fla. Chapter of Sierra Ciub v: Orlando Utilit , 436°S0.2d Comm. 383, 388-89 (Fla. 5" DCA 1983). As a result, this exception amounts to an attempt by Petitioners to reargue their case and have the Governing Board reweigh evidence, | judge the credibility of witnesses, and interpret evidence. However, the Governing Board is limited to determining whether any competent substantia! evidence exists from which the finding may reasonably be inferred, and whether the proceedings complied with essential requirements of law. Goin v. Comm'n on Ethics, 659 So.2d 1131; '4138- 39 (Fla. 1° DCA 1995); Heifetz, 475 So.2d at 1281. Finally, the Board disagrees with Petitioners that adopting this finding would create a precedent regarding acceptable evidence to demonstrate the direction of 20 groundwater flow; it is simply a finding of fact in this case that is supported by competent substantial evidence. Petitioners’ Exception No. 10 Petitioners take exception to FOF 81 onthe grounds that there is “no basis” for finding that the fish pond on the Clark property was thoroughly investigated. For the.. reasons described below, the Board finds that FOF 81 is based on competent substantial evidence and the exception is, therefore, rejected. FOF 81 states: . In 2005, DRMP conducted.a field assessment of the Clark property including a thorough investigation of the fish pond, which Petitioners claim was adversely impacted during one or.more of the APTs. conducted by the City at the Area IV Welifield. In this exception, Petitioners appear to be disputing the “thoroughness” of the investigations performed by the City. Indeed, in FOF 83, the ALJ acknowledges the dispute: “Petitioners contend that there were serious deficiencies in the investigation’s implementation and that additional investigation should have been performed.” (RO at FOF 83). However, the ALJ finds that the “scope of the City's hydrological and _ environmental. investigation of the Area IV Wellfield was adequate and consistent with industry standards... .” (Id.). There is competent substantial evidence to support the finding in FOF 81 that the fish pond was thoroughly investigated. (T:2106-40; City Ex. 41, 50, 151). In their exception, Petitioners also state that the water levels (presumably in the fish pond) were not monitored during the testing program and that there is no competent substantial evidence to refute observations made (presumably of the fish pond) during the testing program. These statements are an attempt to re-argue the evidence 21 regarding the adequacy of the investigations. The Governing Board is limited to determining whether any competent substantial evidence exists from which the finding may reasonably be inferred, and whether the proceedings complied with essential requirements of law. Goin, 659 So.2d, 1138-39; Heifetz, 475°So.2d at 1281. Petitioners’ Exception No. 11 . Petitioners take exception to FOF 83 on the grounds that the ALJ limited Petitioners’ ability to cross-examine certain expert witnesses and failed to reconcile alleged “inconsistencies between the BFA hydrologic parameters determined through the hydrologic parameters determined through the hydrologic investigation and the parameters utilized in the latest round of the City’s modeling.” For the Yidasons described below, the Board rejects. this exception. FOF 83 states: The scope of the City's hydrologic and environmental investigation of the Area IV ‘Wellfield was adequate and consistent with industry standards and'the District protocol for testing aquifers and characterizing aquifer performance and groundwater quality at the site. Nonetheless, Petitioners contend that there were serious deficiencies in the investigation's implementation and that additional investigation should have been performed. This finding is supported by competent substantial evidence. (T:331-32; 2708, 2726). Petitioners adopt their exceptions to FOFs 67, 68, 69, and 70 (Exception Nos. 6, 7, and 8), which are ruled upon elsewhere. . Petitioners’ Exception No. 12 Petitioners take exception to FOFs 86 and 87 without alleging a legal basis for the exception. They simply make statements followed by citations to the record to atgue that the drilling and testing program was “never designed to reach the MCU [Middle Confining Unit] and the results should not'be used to establish a depth that 22 deviates from the consensus of professional publications.” Since Petitioners do not explain the legal basis for the exception to these findings of fact, the Board need not rule on it. Section 120.57(1)(k), F.S. Nevertheless, the exception is rejected for the reasons set forth below. FOF 86 states: The UFAS at the Area !V Wellfield is a fairly homogenous limestone unit, which starts approximately 100 feet below land surface and extends to about 450 feet below land surface or 425 feet below mean sea level. It.consists of the Ocala. Group and grades in into the upper portion of the Avon Park Formation. FOF 87 states: 7 The middle confining unit (MCU) at the Area IV Wellfield starts at approximately 450 feet below land surface or 425 feet below, mean. sea level and ends approximately 1,000 feet below land surface. 4 comprises a denser, fine-grained. dolomitic limestone within the. Avon Park Formation. The MCU restricts the movement of water between the UFAS and LFAS. This exception amounts to an attempt by Petitioners to. reargue their. case and have the Governing. Board reweigh.evidence, judge the credibility of witnesses,.and interpret evidence. However, the Board is limited to determining. whether any ‘competent substantial evidence exists from which the findings may reasonably be inferred. The Governing Board is not the fact finder and cannot reweigh the evidence, or resolve asserted conflicts in the evidence. Goss, 601 So.2d at 1235; Rogers, 920. So.2d 27, 30 (Fla. 1 DCA 2006). Furthermore, Petitioners seek the Governing Board to make additional or supplemental findings, which the Board cannot do. Florida Power & Light, 693 So.2d at 1026-27; Boulton, 643 So.2d at 1105. Both of these findings are supported by competent substantial evidence. (T:4086, 2668, 3817; City Ex. 291, 86; 305 at p. 71-72.) 23 Petitioners’ Exception No. 13 Petitioners take exception to FOF 88 on the grounds that the finding is based on “the hearsay conclusions” of a witness who was not called to testify at the hearing. Petitioners also take exception to this finding because “the drill cuttings were not retained and were not made available for inspection or examination” to Petitioners, and they argue, without citation to ‘any legal authority, that “[njo Finding of Fact can be predicated upon drill cuttings that were disposed of by the City while the Application was pending.” For the reasons described below, the exception is rejected. FOF 88 States: 7 | The location of the MCU at the Area IV Wellfield was determined by examining cuttings and video logs: collected during the drilling performed at Test Sites 1 and 3 and by measuring various properties of the aquifer with down-hole geophysical techniques. : This finding is based on competent substantial evidence. (T:3610-12; City’Ex. 305 at 27). Further, during the hearing, Petitioners objected and moved to strike any testimony related to the cuttings arguing that it would be “based on evidence that does not exist.” (T:3428). The ALJ overruled the objection and the Board may-not disturb this evidentiary ruling. Barfield, 805 So.2d at 1012 (the agency lacked jurisdiction to overturn an ALJ’s evidentiary ruling). Petitioners reference their Exception No. 12 to FOFs 86 and 87, which were ruled upon elsewhere. Petitioners’ Exception No. 14 Petitioners take exception to FOF 89 on the grounds that no competent substantial evidence was presented “to support a conclusion that the notations of ‘dolomitic limestone’ in the lithologic logs was a sufficient basis to conclude that the 24 MCU had been penetrated by the BFA drilling program.” The.remainder of the exception simply contains statements accompanied by citations to the record to argue that the testimony of Petitioners’ expert Missimer should be interpreted in a certain manner. The exception is rejected for the reasons set forth below. FOF 89 states: The MCU can be distinguished from the UFAS by the presence of both dolomite. and limestone. The lithologic log for Test Site 1 indicates the presence of gray/tan limestone between 450 and 460 feet below land surface and light/gray limestone and dolomitic limestone.between 460 and 470 feet below land surface. The lithologic log for Test Site 3 indicates the presence of tan dolomitic limestone between 450 and 460 feet below land surface and tan limestone and dolomitic limestone between 460 and 470 feet below land surface. After examining the video log for Test Site.1, Petitioners’ expert, Dr. Thomas Missimer, noted a "lithologic change" at 477 feet below land surface. This finding is supported by competent substantial evidence. (T:3826-27, 4103-04; City Ex. 305 at 93-94, 98-99). To the extent that Petitioners are seeking to have the Board reinterpret or reweigh the evidence, the Board is precluded from.doing so. Goss, 601 So.2d at 1235; Rogers, 920 So.2d at 30. Petitioners reference their exceptions to FOFs 86-88 and 218-224, which were ruled upon elsewhere. Petitioners’ Exception No. 15 Petitioners take exception to FOF 90 on the grounds that no competent substantial evidence was presented to “distinguish between the decrease in flow that occurred at approximately 450 feet below land surface from decreases in flow that occurred at other depths.” For the reasons described below, the exception is rejected. FOF 90 states: Other characteristics of the MCU are a lower resistivity and a sharp decrease in flow. The data collected at Test Site 1 shows a reduction in resistivity at 25 approximately 470 feet below land surface. The flow meter log for Test Site 1 exhibits a decrease in flow at approximately 450 feet below land surface. This finding is based on competent substantial evidence. (T:771-72, 802-03, 3826-27; City Ex. 305 at 98, 108, 118). Petitioners reference their exceptions to FOFs 86-89, which were ruled upon elsewhere. Petitioners’ Exception No. 16 Petitioners take exception to FOF 91 without stating a legal basis for the exception, and, therefore, the Board need not rule on it. Section 120.57(1)(k), F.S. Nevertheless, the exception is rejected for the reasons set forth below. FOF 91 states: Petitioners’ experts, Thomas Missimer, Alge Merry, and Bruce Lafrenz contend - that the top of the MCU at the Area IV Wellfield is located deeper than 450 feet below land surface or 425 feet below mean sea level. This contention is based on régional-reports, the geophysical logs reported by BFA; arid one of the packer tests conducted at the bottom of the test wells that showed'a pumping rate of 85 gpm. ; ce This firiding is supported by. competent substantial evidence. (T: 3835-38; 4461-64, 5311-12; Pet. Ex. 12114, 12115). Further, this exception does not assert that the finding lacks evidentiary support, but rather Petitioners appear to be requesting the Board to make additional or supplemental findings of fact regarding the bases of the contention by Petitioners’ experts that the top of the MCU jis located deeper than 450 feet below land surface. The Governing Board cannot make additional or supplemental findings. Florida Power & Light, 693 So.2d at 1026-27; Boulton, 643 So.2d at 1105. 26 Petitioners’ Exception No. 17 Petitioners take exception to FOF 92 on the grounds that it is based upon uncorroborated hearsay. For the reasons described below, the exception is rejected. FOF 92 states: The greater weight of evidence indicates the.top of the MCU at the Area IV. Wellfield starts at the elevation identified by BFA. The regional reports are not based on data collected from the immediate vicinity of the Area IV Wellfield. Additionally, the BFA’s professional geologists.who determined the:top of the MCU included Joel Kimrey, who was the former head of the local USGS office, and had more experience. with the hydrogeology of the MCU in Brevard and Volusia than any of the Petitioners’ geologic experts. Also, the BFA geologists. had. access to the drill cuttings, which were unavailable to the Petitioners’ experts when: they made their determination. Finally, the.pumping rate recorded during the. packer test could be. explained by an area.of higher permeability within the MCU. More likely, the packer.may have been partially open-to the bottom of-the UFAS. As determined in the ruling on Petitioners’ Exception No.12 to FOEs 86 and 87, the ALu'’s finding that the MCU starts at approximately 450 feet below land surface is . supported by competent-substantial evidence. The first sentence of this FOF simply reiterates the ALJ's decision as fact finder.to accord greater weight to the evidence presented by the City regarding the location of the MCU. The remainder of this finding is supported by competent substantial evidence. (T:771-74, 1342-44, 1383-86, 3443-44). Petitioners reference their exceptions to FOF 86-91, and 200 and 208, which were ruled upon elsewhere. Petitioners’ Exception No. 18 Petitioners take exception to FOF 97 on the grounds that certain head measurements were performed after groundwater modeling was completed. The . exception acknowledges that Petitioners objected to the introduction of these 27 measurements and then alleges that “[t]he after the fact development of additional measurements to support the calibration was improper and should not have been allowed into evidence.” For the reasons described below, the exception is rejected. FOF 97 states: BFA took static head measurements at SAS and UFAS monitor wells located at Test Sites 1,2 and 3 in January 2004, Aprit 2004, and July 2006 and calculated the head difference based on those measurements. District expert, Richard Burklew, was present when the measurements were taken in Aprit2004 and July 2006 and verified the readings made by the City’s consultants. During all'three sampling events a downward head gradient was noted at each site, which means the water table had a higher elevation than the potentiometric surface of the UFAS. In January 2004, the measured head difference at Test Sites 1, 2 and 3 were 6.2 feet, 5.5 feet'and:5.9 feet, respectively. In April 2004, the measured head difference at Test'Sités 1 and 3 were 8:1 feet and’8:1 feet, respectively. Finally, in July 2006, the measured head: difference:at Test'Sites 1, 2 and 3 were 8.6 feet, 6.6 feet and 9.3 feet, respectively. The average of those observed head differences was 7.46 feet. Essentially, Petitioners are disputing the ALJ's ruling‘on an evidentiary matter, a ruling which the Board is not permitted to disturb. Barfield, 805 So.2d at 1012, (the agency lacked jurisdiction to overturn’an ALJ's evidentiary ruling). “In any event, this finding is supported by competent substantial evidence. (T:317-20, 1732-34, 2704-05; City Ex.87). Petitioners’ Exception No. 19 Petitioners take exception to FOF 98 on the grounds that “[t]here is no competent substantial evidence to support a finding that the hydrologic system, in particular the UFAS, would have reached equilibrium after a major rainfall event occurring shortly before the measurements were taken.” For the reasons described below, the exception is rejected. FOF 98 states: 28 At the time the head difference measurements were taken in July 2006, the region had experienced a rainfall deficit of 17 inches over the prior 12 months. Petitioners contend that the rainfall deficit may have skewed that head difference observation. However, according to the District's expert, Richard Burklew, this would not necessarily have affected the head difference measurements because the hydrologic system would seek equilibrium, and the head difference would be the same. This finding is supported by competent substantial evidence. (T :2704-06). Petitioners reference their Exception No. 44.to FOFs 154-158, which were ruled upon elsewhere. Petitioners’ Exception No. 20 Petitioners take exception to FOF 99 on the grounds that “[t]here is no. competent substantial evidence to conclude that there are not significant differences between the wet and dry seasons.” Further, they argue that the ALUJ’s conclusion regarding head difference data collected from the other sites is “uncorroborated hearsay” and that “accordingly, there is no competent substantial evidence to support the finding that static head differences remain fairly constant at the Area IV Wellfield year-around.” For the reasons described below, the exception is rejected. . FOF 99 states: BFA collected static head difference. measurements from Test Sites 1, 2.and 3 during. both wet and.dry seasons. Th measu ments, do-not. show significant differences. between seasons. Head difference. data collected from hundreds of other Florida locations also do not show significa erences between seasons. This suggests that static head difference remains fairly constant at the Area IV Welifield year round. Contrary to Petitioners’ assertions, this finding is supported by competent substantial evidence. (T:318-20,1520-21, 2704-06). Petitioners reference their exceptions to FOFs:97-98 and 154-158, which were ruled upon elsewhere. 29 Petitioners’ Exception No. 21 Petitioners take exception to FOF 100 on the grounds that there is no competent substantial evidence to support the finding that the Clark property is located in a more elevated region than Test Sites |, Il, and Ill. For the reasons described below, the Board finds that the disputed portion of FOF 100 is based on competent substantial evidence, and the exception is, therefore, rejected. The relevant portion of FOF 100 states: Finally, the Clark property is located in a more elevated:region than Test Sites.1, 2, and 3, which means the water table will be lower and the head difference will be less than at the Area IV Wellfield. This statement is based on competent substantial evidence. (T:3019-20; City Ex. 39 and 70; Pet. Ex. 12998, 13013, and 13034 [referred to as Ex. 31]). Petitioners’ Exception No. 22 Petitioners take exception to FOF 101 without stating a legal basis for the exception, and therefore the Board need not rule on it- Section 120.57(1\(k), F.S. Nevertheless, the exception is rejected for the reasons set forth below. FOF 101 states: Water level measurements reported i inthe driller's completion log for Wells 4175, 4176, 41 77, arid 5230 on Miami Corporation’ s “property donot’: determine static héad difference between‘the SAS and UFAS because. critical information ‘conceming the construction ‘of these wells is unknown. Additionally, ‘the wells are much shallower than test production wells at Test Sites 1, 2 and 3. The finding is supported by competent substantial evidence. (T:988-89, 5512-16). Petitioners argue that the finding “fails to acknowledge” that the wells referenced in the finding are located within the groundwaterflow model: used by the.City and that measurements from these wells should have been used to assess’ the performance of 30 the City’s modeling. These arguments amount to an attempt by Petitioners to reargue the evidence. Petitioners’ Exception No. 23 Petitioners take exception to FOF 102 on the grounds that it is not, supported by competent substantial evidence and based on uncorroborated hearsay and speculation. The exception is rejected for the reasons set forth below. FOF 102 states: The water level measurements reported in the driller's completion log for Wells 4175, 4176, 4177, and 5230 are not necessarily inconsistent.with head difference measurements collected by BFA at Test Sites 1, 2 and 3. The head differences at these four well sites. could be 6, 4, 7, and 6 feet, respectively, depending how the water measurements were made. Also, the measurements made by a driller could not be expected to be as accurate as measurements. made by trained hydrologists. Further, if the soils in the vicinity of Well 4177 indicated.a depth to water table of 5 feet below land surface, that would not necessarily be inconsistent with the head difference measurements collected by BFA at Test Sites 1, 2 and 3.. Contrary to Petitioners’ assertions, this finding is.based on competent substantial evidence. (T:1471-78, 1972-74). Petitioners’ Exception No. 24 Petitioners take exception to FOF 104 and 105 on the grounds that the second sentence of FOF 104 is based on hearsay and_not supported by competent substantial evidence and that these findings are inconsistent with other evidence in the record. The exception is rejected for the reasons set forth below. FOF 104 states: The water table in the Area IV Wellfield area is consistently close to land surface and often above land surface. The construction of numerous above-. grade forest roads and roadside ditches on the property surrounding the Area IV Wellfield has had the effect of impounding surface water and raising the water table near land surface. 31 FOF 105 states: The Area IV Welifield and vicinity have a variety of soil types. The predominant wetland sail type is Samsula Muck, which is classified as:a very: poorly drained soil with a water table either at or above land surface. The predominant upland soil type is Myakka Fine Sand, which is characterized by a waier table within a foot of land surface during four months of the year and within 40 inches of land surface during remainder of the year: The average depth to water table'at the Area IV Wellfield is approximately 1 foot based on soil types. Both findings are supported by competent substantial evidence. (T:212-14; @ity. Ex. 74 at 64-67; City Ex. 745A at 459-460; T:2115-22, 1673-75; City Ex. 156). As noted previously, the Board’s role with regard to findings of fact is limited to whether a finding of fact is supported by competent substantial evidence. Petitioners’ Exception No. 25 Petitioners take exception to FOF 106 on the grounds that it based on — unsupported hearsay and that this finding regarding the location of the water table at the Area IV Wellfield is inconsistent with the last sentence in FOF 104. The exception is rejected for the reasons set forth below. FOF 106 states: SAS levels at the three Farmton Mitigation Banks were measured at piezometers installed by | Miami Corporation's consultants from 2001 through 2005. This data confirms the water table at the Area IV Wellfield is consistently close to land surface and frequently above land surface. It indicates the depth to water table is typically less than 3 feet and in many cases within a foot or two. Also, it does not matter whether any of the piezometers were located near wetlands because they show seasonal variation in water levels, where the water table changes from slightly above land surface to below land surface over the course of a year. This finding is supported by competent substantial evidence. (T:212-14, 1960-64, 3615- 18; City Ex. 58). Petitioners raised a hearsay objection to some of the testimony and 32 the exhibit that support this finding, and the ALJ overruled the objection. The Board lacks jurisdiction to disturb this evidentiary ruling. Barfield, 805 So.2d at 1012. Petitioners’ Exception No. 26 Petitioners take exception to FOFs 109 and 110 without.stating a legal basis for their exception and therefore the Board need not rule on it. Section 120.57(1)(k), F.S. Nevertheless, the exception is rejected for the reasons set forth below. FOF 109 states: . An aquifer performance. test (APT) i is.a pumping. test where water | is removed from the well at a set rate for a set period of time and drawdown i is measured in the well and in neighboring monitor wells to calculate the hydraulic properties of the hydrologic formation. The main hydraulic properties determined, through an APT are transmissivity, leakance, and storativity. These properties are used to characterize the water production capabilities of the hydrologic formations. These properties are also. used in groundwater modeling to project impacts for longer periods of time and larger distances. FOF 110 States: Aquifer parameters can be determined from an aquifer performance test using analytical "curve-matching” techniques or a groundwater flow model such as” MODFLOW. Curve-matching techniques involve the creation of a curve through measurement of drawdown-and the matching of that’curve to standard curves derived using analytical equations. In this exception, Petitioners merely make a statement regarding how. the aquifer performance tests (APTs) for the Area. IV Wellfield were performed. and:then cite.to _ testimony in the record. Both findings are supported by competent substantial . evidence. (T:250-51, 3783-85). Petitioners reference their Exception Nos. 6.and 7 to FOFs 67 and 68, which were ruled upon elsewhere. 33 Petitioners’ Exception No. 27 Petitioners take exception to FOFs 113 and 114 without stating a legal basis for their exception to these findings and, therefore, the Board need not rule on it. Section 120.57(1)(k), F.S. Nevertheless, the exception is rejected for the reasons set forth below. FOF 113 states: Storativity is the term used to describe the amount of waiter that is: released from any aquifer for a given unit change in head, or the compressability of the aquifer system. This value ‘can normally be determined: during: a45 day: aquifer performance test. FOF 114 states: Specific yield is the term used to describe the long-term capacity of an aquifer to store water. This value cannot normally be determined during a 4-5 day aquifer performance test. — In this exception, Petitioners allege that the ALJ failed to make certain findings regarding the characteristics of an unconfined aquifer and failed to explain the 7 justification for certain changes made to specific yield values used in.the groundwater modeling performed by the City. They then argue that the values for specific yield were “extremely low and unreasonable for the area,” which amounts to an attempt to reargue the evidence. As noted above, the Board'is precluded from making additional'findings of fact. Both findings are supported by competent substantial evidence and simply describe certain terms of art. (T: 260, 1320, 1727-29). Petitioners reference their Exception No. 42 to FOF 151, Which was ruled upon elsewhere. 34 Petitioners’ Exception No. 28 Petitioners take exception to FOFs 116 and 122 without stating a legal basis for their exception and, therefore, the Board need not rule on it. Section 120.57(1)(k), F.S. Nevertheless, the exception is rejected for the reasons set forth below. FOF 116 states: APTs are standard practice for evaluating the suitability of a new area for development as a wellfield. Three APTs. were conducted at Test Sites 1 and 3. No aquifer performance tests were conducted at Test Site 2. Petitioners question whether the APTs for the Area IV Wellfield were conducted by BFA in accordance with the applicable standard of care in the hydrogeologic profession. The District's expert, Richard Burklew, believes the three APTs conducted at Test Sites 1 and 3 were adequate for purposes of determining appropriate aquifer parameters. FOF 122 states: Leakance values determined by BFA from the APTs conducted at Test Sites 1 and 3 were based on the application of analytical curve-matching techniques. The leakance values determined through the conventional type curve- matching techniques employed by BFA are typically higher than the actual leakance values. They are also’ inherently limited because they : assume the calculated, leakance.is due entirely to the ICU rather than a combination of the ICU and MCU as is thé case at the Area IV Wellfield. The analytical ‘techniques employed by BFA were unable to calculate separate leakance values for the ICU and the MCU. The best way to determine leakance values for each of these confining units was to use a MODFLOW model and observed head difference data. This was done by the City’s consultant, SDI, and is described in greater ~ detail, infra. In this exception, Petitioners contend that FOF 116 incorrectly states that they question whether the APTs for the Area IV Wellfield were conducted in accordance with the applicable standard of care. Presumably, they are arguing that this finding is not supported by competent substantial evidence. In fact, both findings are supported by competent substantial evidence. (T:869-71, 1065-68, 1309-12, 3035-36, 3627-28, 3668-70, Pet. PRO at 162). _ Petitioners further contend in this exception that: 35 The City was improperly allowed to modify its modeling approach throughout the litigation without having to maintain consistent parameters. The constantly changing models based on the same underlying data and the multiple versions of the TSR while the challenges were pending at DOAH were contrary to the requirements of Chapter 120, Fla. Stat. and Petitioners’ due process rights. This argument does not directly address the findings in FOFs 116 and 122. Rather, Petitioners appear to contend that the proceeding did not comply with the essential requirements of the law given the changes in modeling approach and three versions of the TSR during the 2.5 years of litigation. An administrative hearing is‘a de novo proceeding intended to formulate final agency action. Section 120.57(1)(k), F.S.; Dept. of Transp. v. J.W.C., Inc., 386 So.2d 778, 786-787 (Fla. 1 DCA 1981 ). The de novo nature of the hearing means that the evidence is presented anew, as if for the first time. As such, the City was not precluded from developing information to support its permit application after petitions for administrative heating had'been filed. Moreover, the Board notes that the hearing was continued at least orice to afford Petitioners an opportunity to conduct additional discovery regarding new information or additional modeling developed by the City. Petitioners’ Exception No. 29 Petitioners take exception to FOF 124 without stating a legal basis for their exception and, therefore, the Board need not rule on it. Section 420.57(1)(k), F.S. Nevertheless, the exception is rejected for the reasons set forth below. FOF 124 states: Consistent with the general understanding of the freshwater groundwater tongue extending from Volusia into Brevard County, the TDEM performed by SDII Global indicated that the depths to the 250 mg/l and 5,000 mg/l chloride concentrations decrease as one proceeds south along the FEC ROW. For example, the depths to the 250 mg/l and 5,000 mg/l chloride concentrations were 442 feet and 542 feet, 36 respectively, at the northernmost test site, which is somewhat north of the City’s Test Site 1. The depth to the 250 mg/l and 5,000 mg/I chloride concentrations were 406 feet and 506 feet, respectively, at the southernmost test site, which is somewhat south of the City’s Test Site 2. Petitioners contend that this FOF fails to distinguish between different methods for estimating the different isochlors and argue that conflicting evidence regarding isochlors was not reconciled. The finding is supported by competent substantial evidence. (T:248-49, 2699-00; City Ex. 69, 86, 209). To the extent Petitioners are seeking to have the Board reinterpret or reweigh the evidence or make additional findings of fact, the Board is precluded from doing so. Petitioners reference their Exception No. 8 to FOFs 69 and 70 which were ruled upon elsewhere. Petitioners’ Exception No. 30 Petitioners take exception to FOFs 125, 126, and127 without stating a legal basis for their exception and, therefore, the Board need not rule en. it. Section 120.57(1)(k), F.S. Nevertheless, the exception is rejected for the reasons setforth below. . FOF 125 states: — Sixteen water quality grab samples were collected every 20-30 feet.as the test production well at Test Site 1 was drilled, beginning at 120 feet below land surface and _ending.at 500 feet below land surface. This type of sampling is referred to as drill-stem testing. The chioride concentrations in the samples collected from 120 feet and 480 feet below land surface were 59 mg/l. and 879 mg/l, respectively. The chloride concentrations in these samples did not exceed 250 mg/l until a depth of 460 feet below land surface was reached. FOF 126 states: Six water quality grab. samples (drill-stem tests) were collected. every 20-30 feet as the test. production well at. Test Site 2 was drilled, beginning 120 feet below land-surface and ending 210 feet below land ‘surface. The chloride concentrations in the samples collected from 120 feet and 210 feet below land surface were 124 mg/l and 845 mg/l, respectively. The chloride concentrations in 37 these samples did not exceed 250 mg/I until a depth of 180 feet below land surface. FOF 127 states: Fourteen water quality grab samples (drill-stem tests), were collected every 20-30 feet as the test production well at Test Site 3 was drilled, beginning at 120 feet below land surface and ending at 500 feet below land surface. The chloride concentrations in the samples collected from 120 feet'and 500 feet below land surface were 45 mg/l and 90 mg/l, respectively. The chloride concentrations in these samples never exceeded 90 mg/l. Petitioners contend that these findings “fail to recognize the limited reliability of the drill stem measurements” and that the ALJ failed to reconcile evidence regarding drill stem measurements with the results of packer tests. In essence, Petitioners are requesting the Board to reweigh the evidence, and the Board is precluded from doing so. The findings are supported by competent substantial evidence. (T:2699-2700, 3821-23; City Ex. 305 at p. 25, 44, 62). © Petitioners’ Exception No. 34 Petitioners take exception to FOF 132 on the grounds that it is based on uncorroborated hearsay and speculation. Petitioners then argue that the finding is “contrary to elemental science” and would establish “a very bad precedent for purposes of evaluating water quality results as part of CUP applications.” The exception is rejected for the reasons set forth below. FOF 132 states: The packer test samples collected at Test Sites 1 and 3 were collected using a higher pumping rate than typically recommended by the DEP and the United States Environmental Protection Agency (EPA). Consequently, the chloride concentrations i in these samples are probably higher than the chloride concentrations found i in the undisturbed groundwater at those depths. Since the packer sits on top Of the borehole and restricts flow from above, it generally i is reasonable to assume that a packer test draws more water from below than from 38 above the packer. However, if transmissivity is significantly greater just above the packer, it is possible that more water could enter the packer from above. The finding is based on competent substantial evidence. (T:922-28). Petitioners’ arguments challenge the weight and credibility that was accorded the evidence by the ALJ, and the Board declines, to reweigh or reinterpret the evidence. Petitioners’ Exception No. 32 Petitioners take exception to FOFs 133 through 136 without stating a legal basis for their exception and, therefore, the Board need not rule’on it. Section 120.57(1)(k), F.S. Nevertheless, the exception is rejected for the reasons set forth below. FOF 133 states: Seven water quality grab samples were collected every 12 hours during the 2001 APT at Test Site 1. The chloride concentrations in the first and last grab sample were 59 mg/l and 58 mg/l, respectively. FOF 134 states: Seven water quality grab samples were collected. every: 42 hours during the 2001 APT at Test Site 3. The chloride concentrations i in the first and last grab samples were 19 mg/l and 52 mg/l, respectively. FOF 135 states: . Nine water quality grab samples were collected every 12 hours during the 2003 aquifer performance test at Test Site 1. The field-measured chloride concentrations in the first and last grab samples were 56 mg/l and 55 mg/l, respectively. The laboratory measured chloride concentrations in the first and last grab samples were 66 mg/l and 74 mall, “respectively. FOF 136 states: The average chloride concentration for the water samples collected during the three APTs at Test Sites 1 and 2 was about 50 mg/l. _. Petitioners’ exception amounts to an attempt to reargue the evidence. For example, they state that “this testing provides no basis for assessing water quality in the lower 39 portions of the Upper Floridan Aquifer’ and challenge the appropriateness of relying upon “short-term, shallow pumping tests” to determine inputs into groundwater models. It is the ALJ’s statutory function to find the facts, and this Board is bound by a finding if it is supported by any competent substantial evidence. All of the findings in these FOFs are supported by competent substantial evidence. (T: 264-65, 2699-2700; City Ex. TA; 305 at 25, 62; City Ex. 237). Petitioners’ Exception No. 33 Petitioners take exception to FOF 138 without stating a legal basis for their exception and, therefore, the Board need not rule on it. Section 120.57(1)(k), F.S. Nevertheless, the exception is rejected for the reasons set forth below. FOF 138 states: | With one exception, all the water quality samples collected by BFA from Test Sites 1-3 had an acceptable charge balance. The one exception was a sample collected from the packer interval of 270-295 feet below land surface at Test Site 3 with a ‘chloride concentration of 74 mg/l. This’ sample has a positive charge balance of 32.30 percent. Petitioners’ exception amounts to an attempt to reargue the evidence and thus have the Board reinterpret the evidence and make additional findings. The Board declines to do so. This finding is supported by competent substantial evidence. (T:292-96, 298-99, 915-17, 5307-11. Petitioners reference their Exception, No. 33 to FOF 139, which was ruled upon ‘elsewhere. Petitioners’ Exception No. 34 Petitioners take exception to FOF 139 on the grounds that the cause of the charge imbalance referenced in this finding is not supported by competent substantial evidence. The exception is rejected for the reasons set forth below. 40 FOF 139 states: The sample collected from the packer interval of 270-295 feet below land surface at Test Site 3 has an overabundance of cations probably caused by grouting and cementing of the packer prior to taking the sample. Since chloride is an anion and not a cation, any error associated with this sample would not effect — the. validity of the 74 mg/l chloride concentration measured in this sample. This . conclusion is also supported by the fact that two samples were collected from the same well.at a packer interval of 340-400 feet below land surface with.acceptable charge balances and they contained chloride concentrations of 64 mall and 134 mg/l. ; This finding is.based on competent substantial evidence. (T:296-97, 914-17,:2730-33). The exception also argues that the discarding of one packer test measurement is not supported:by competent substantial evidence; however, the finding regarding the discarding of this packer test measurement is contained in FOF 140, to which Petitioners have not taken exception, but which also is supported by competent substantial.evidence. (T: 2730-33). The remainder of this exception again amounts to . an attempt by Petitioners to reargue the evidence: Petitioners’ Exception No. 35 Petitioners take.exception to FOF 142 without stating the basis for the exception. Although the Governing Board need not rule on the exception (Section 120.57(1)(k), F.S.), the exception. is rejected for the reasons described below. The relevant portion of FOF 142 states: Petitioners ... point to a regional report indicating that there is a groundwater. basin divide just north of the Area IV Wellfield. This report is based on a 1980 .USGS potentiometric surface map. , However, another regional.report indicates that the groundwater basin divide occurs south of the Area IV Wellfield. This report.is likely. based on a 1998 USGS potentiometric surface map. Because of the lack of data points in rural northwest Brevard County, the City did not rely on any groundwater basin divide maps; but rather collected site specific | information regarding the proposed Area IV Wellfield. a Petitioners do not allege that FOF 142 lacks support. Rather, they appear to disagree with the ALJ's characterization of a report. For example, Petitioners state that the 1998 District report “did not attempt any analysis of long-term flow records” and “was not intended to designate a groundwater basin divide.” The regional report indicating a groundwater basin divide north of the proposed wellfield is SJRWMD Technical Publication SJ90-10; Upper St. Johns Groundwater Basin Resource Availability Inventory (Pet. Ex. 12230), and the regional report indicating a groundwater divide south of the proposed wellfield is SJRWMD Technical Publication SJ99-1, Geostatistical Central Florida (City Ex. 523 at 38). Pétitioners appear to prefer the report indicating - that the groundwater basin divide is north of the proposed wellfield because it supports. their position that the water from the Upper Fioridan aquifer at the proposed wellfield is from local freshwater recharge only. Both reports were published by the District. “When the report showing a divide south of the proposed wellfield was introducéd as evidence, Petitioners questioned the report’s co-author about the report's scope and purpose, and objected to its admission. (T:995-99, 3417-22). The duty of the ALJ is to admit evidence, sift and weigh it, and reach a conclusion regarding what is established by the preponderance of that evidence. The finding is based on competent substantial evidence. (T: 994- 7, 3417-8; City Ex. 523 at 38). As a practical matter, it is unclear what Petitioners attempt to accomplish in taking exception, as the last sentence in FOF 142 finds that the City did not rely on either report. Petitioners’ Exception No. 36 Petitioners take exception to FOF 143 without stating a legal basis for their exception and, therefore, the Board need not rule on it. Section 120.57(1)(k), F.S. Nevertheless, the exception is rejected for the reasons set forth below. FOF 143 states: The District's expert and the Petitioners’ own expert (the. sponsor of Petitioners’ potentiometric surface map exhibits) noted several errors in the flow direction arrows added by Petitioners.to the maps. In addition, after reviewing. ‘the potentiometric surface maps presented by Petitioners, the District's « concluded that, in addition to local freshwater recharge, the predominant flow into the vicinity of the Area IV Wellfield is generally from. the northwest and southwest. To confi irm his opinion, the District's expert examined the head difference data elevation i in ‘the well was 16. 27 NGVD. ‘At site 3, which i is ‘southeast of Site 1, the -elevation in the UFAS observation well was 15.68 NGVD..At site 2, which is . southeast of site 3, the elevation in the UFAS well was 13.87 NGVD. Since water generally flows from the highest to lowest head measurements, these _ measurements indicated that water would’ have been flowing from the northwest to the southeast in the vicinity of Area IV. However, the potentiometric surface can change both seasonally and yearly; likewise, the basin boundaries may also change. ; : in this exception, Petitioners “object to the reliance upon head difference data collected in July 2006” and again attempt to reargue the evidence. This finding is supported by competent substantial evidence. (T:946-47, 994-97, 2714-18, 2720, 2725, 341 7-1 8, 3943-44, 4173-78; City Ex. 59, 523; City Ex. 69; Dist. Ex. 128 at 8). Petitioners reference their Exception No. 9 to FOF 77, which was ruled upon elsewhere. Petitioners’ Exception No. 37, Petitioners take exception to FOF 145 without stating a legal basis for their exception and, therefore, the Board need not rule on it. Section 120.57(1){k), F.S. Nevertheless, the exception is rejected for the reasons set forth below. 43 FOF 145 states: During the permit application review process, the City submitted a succession of models to provide reasonable assurance that the proposed Area IV Wellfield would not result in unacceptable drawdown. Initially, BFA prepared and submitted groundwater flow simulations of the Area IV Wellfield prepared using an analytical model known as the "Multi-Layer/SURFDOWN: Model.” Although the District initially accepted the submission as providing reasonable assurance to support the District's initial TSR, Miami Corporation petitioned and’ criticized the City’s model as not actually providing reasonable assurance, both because of its predicted SAS drawdown and because it was an analytical model (which can only represent : simple conditions i in the environment, assumes’ homogenous conditions and simple boundary conditions,.and_ provides only a imodelwide solution of the governing equation). In this exception, Petitioners do not take exception to any of the findings in this FOF. Rather, they object to the ALJ's failure to include certain findings regarding the history of the City’s application. The’ Board lacks jurisdiction to make additional findings of fact and declines to do so. The finding is supported by competent substantial evidence. (T:729-733, 3639-45). Petitioners’ Exception No. 38 Petitioners take except to an omission in FOF 147. Because Petitioners did not identify a proper legal basis for the exception, the Governing Board need 'not rule on the exception. Section 120.57(1)(k), F.S. Nevertheless, the exception is rejected for the reasons described below. The relevant portion of FOF 147 states: - Miami Corporation's petition was scheduled for a final hearing in June 2005 that was continued until September 2005 after the first revised TSR was issued i in May 2005. In the “preliminary statement” section of the Recommended Order, the ALJ summarized the procedural history. FOF 147 is consistent with the history presented on pages 3 and 4 of the Recommended Order. Petitioners contend that FOF 147 “fails to acknowledge that the First Revised TSR [Technical Staff Report] issued in May 2005 attempted to correct numerous problems that were pointed out by Miami Corporation with respect to the initial TSR issued in December 2004.” Petitioners’ exception relates to the two TSRs developed by the District before the final TSR. The final TSR presented at the hearing that began on December 11, 2006, was the.TSR dated May 1, 2006. (City Ex. 291). An administrative hearing is.a de novo proceeding. Section 120.57(1)(k), F.S. The de novo nature of the hearing means that the evidence is presented anew, as if for the first time. The parties to the litigation,, including the District, were not prohibited from conducting additional work and analysis after the petition for administrative hearing was filed. The purpose of the administrative hearing process is to formulate final agency action on.the application offered. at the final hearing, not to review previous versions of the application or the agency's decision. Dept. of Transp. 386 So.2d at 786-87. It is unclear what Petitioners attempt to accomplish in taking this exception. To the extent Petitioners wish to review the history of the case, we note that the . Recommended Order covers the procedural. history in some detail and mentions the District's three TSRs dated December 15, 2004; May 25, 2005; and May 1, 2006. (RO at 3-6, FOFs 16-20). If Petitioners are asking the Goveming Board to. make additional findings of fact, the Board must decline because it has no authority to do so. Boulton, 643 So.2d at 1105. Even if the Governing Board had the authority to include Petitioners’ requested acknowledgement, it would not change any of the findings or the outcome of this proceeding. . 45 Petitioners’ Exception No. 39 Petitioners take exception to FOF 148 without stating a legal basis for their exception and, therefore, the Board need not rule on it. Section 120.57(1)(k), F.S. ~ Nevertheless, the exception is rejected for the reasons set forth below. FOF 148 states: Unbeknownst to the District, BFA already had attempted to develop a MODFLOW _ Model of the Area IV Wellfield in 2004, with the assistance of Waterloo Hydrogeologic, inc. (WHI) (which later was retained as Petitioners’ consultant in this case in a reverse of the Hartman client switch). When BFA ended its efforts with WHI, their efforts to ‘calibrate a MODFLOW modél for Area'IV that would predict acceptable drawdown was unsuccessful, and none of those modeling efforts were submitted or disclosed to the District. in this exception, Petitioners object to the ALJ’s failure to reconcile aquifer parameters used in the City's initial modeling with those used in the models that the City relied on at the administrative hearing. Petitioners’ arguments challenge the weight and credibility that was accorded the évidence’by the ALJ, and the Board declines to reweigh or reinterpret the evidence. Additionally, since this is a de novo proceeding intended to formulate final agency action and not to review action taken earliér or preliminarily, the only aquifer parameters that are relevant are those used in the final model offered at hearing, not those used in an earliér preliminary model.’ Dept of Transp., 396 So. 2d at 786-87. The finding is based on competent substantial evidence. (1:3535-36; 3541-49, 3551-52, 3555-58, 3574-76). Petitioners’ Exception No. 40 Petitioners take exception to FOF 149 without stating legal basis for the exception and, therefore, the Board need not rule on it. . Section 120.57(1)(k), F.S. Nevertheless, the exception is rejected for the reasons set forth below. 46 FOF 149 states: In the fall of 2005, the City turned to another consultant, SDI, to attempt to develop a calibrated MODFLOW Model of the Area IV Wellfield. SDI initially prepared a so-called MODFLOW. model equivalent of the Multi- layer/SURFDOWN Model prepared by BFA. It was presented to District staff ata meeting held.in January 2006 for the purpose of demonstrating to District staff that the MODFLOW model equivalent of the Multilayer/SURFDOWN Model generated results for the Area IV Wellfield that were not very different from the results obtained by BFA.using their Multi-layer/SURFDOWN Model. Petitioners criticized several weaknesses in the MODFLOW equivalent model.and maintained that the modeling.efforts to date did not give reasonable assurance of no unacceptable SAS drawdown. By this time, the District had decided to retain Dr. Peter Huyakorn, a. renowned modeling expert. Based.on. his recommendations, the District required the City to produce a calibrated MODFLOW model of Area IV (as well as numerical. solute transport modeling, which will be discussed. below). The scheduled final hearing was continued until September 2006 to allow time for this work-to be completed, discovered, and evaluated... Petitioners’ exception constitutes argument regarding the results of a model.on which the City is not relying in support of this permit application and regarding the purpose ofa meeting held in January 2006. This finding is supported by competent substantial evidence. (T:1370-80, 1702, 1934-36,3561-62). Petitioners’ Exception No. 41 Petitioners take exception to FOF 150 without stating a legal basis for the exception and, therefore, the Board need not rule on it. Section 120.57(1)(k), F.S. Nevertheless, the exception js rejected for the reasons set forth.below. FOF 150 states: After the continuance, the City had.SDI prepare a. cali to predict the drawdown that would result from op sucha model i in, March 2006. This model predictex steady-state, simulation of a 2.75 mgd withdrawal fr production wells. and a 0.18 mgd withdrawal from t extraction/wetland. augmentation wells predicted the n surficial. aquifer to.be less than.0.5 foot. (which, as se ! acceptable). (UFAS drawdown, which is not an issue, was p! dicted to be an acceptable 12 feet.) But Petitioners questioned the va! idity of the model for MODFLOW model rea IV. SDI produced a 47 several reasons, including its suspect calibration. Dr. Huyakorn also had questions conceming the calibration of SDI’s March 2006 MODFLOW model, but subsequent work by SDI satisfied Dr. Huyakom and the District, which issued the TSR and proposed CUP at issue in May 2006 based in part on SDI’s March 2006 MODFLOW model, despite Petitioners’ criticisms. The final hearing was continued until September 2006 to give Petitioners time to complete ‘discovery on SDI’s March 2006 MODFLOW model (as well as the City’s new solute transport modeling, which is discussed, infra). In this exception, Petitioners object to the admission of, and. reliance on, testimony from : Dr. Huyakom, one of the District's expert witnesses. Petitioners objected to Dr. Huyakorn’s testimony on several grounds at the hearing, and their objection was overruled by the ALJ. ‘The Board lacks jurisdiction to disturb. this evidentiary ruling. The finding is supported by competent substantial evidence. (T:1082-85,1891-99,1946-52, 2733; City Ex. 112). Petitioners’ Exception No. 42 Pétitioners take exception to FOF 151 without stating a legal’ basis for the exception and, therefore, the Board need not rule on it. Section 120.57(1)(k), F.S. Nevertheless, the exception is rejected for the reasons set forth below: The exception is rejected for the reasons'set forth below. FOF 151 states: To calibrate its March 2006 MODLFOW, SDI first used:a transient MODFLOW ~ model to simulate data from the 4-day aquifer performance test (APT) from the Area IV Wellfield sites (the transient APT calibration). (A transient model is used to analyze time-dependent variable cond itions and produces a time-series of simulated conditions.) ‘Then, after’ calibrating to the APT data, SDI uSed‘a steady- ODFLOW model (a time-independer mode! used' to I itions by producing one set of s ulated conditions) to simulate the static head difference between the SAS arid UFAS (the steady state head difference calibration). If the head difference simulated in the steady-state calibration run ‘did not match the measured head difference, the ICU leakance was adjusted, and thien the revised parameters were rechecked in another transient APT calibration run. Then, another steady-state head difference calibration run was performed in an ‘iterative process until the best match occurred for both calibration models. In this exception, Petitioners contend that the “District should not accept modeling that is based upon calibration to values that have no basis in reality” and that “[s]uch modeling cannot provide reasonable assurance.” Petitioners do not allege that this finding of fact is not supported by competent substantial evidence. It is supported by such evidence. (T: 1389-90; City Ex. 107, City Ex. 288 at 10). Rather, Petitioners seem to be making an argument with regard to a conclusion of law without identifying the District rule criterion for which “such modeling” can not provide reasonable assurance. Petitioners’ Exception No. 43 Petitioners take exception to FOFs 152 and 153 on several grounds, but do not argue that these findings are not based on competent substantial evidence. The exception is rejected for the reasons set forth below.. FOF 152 states: in order to achieve calibration, SDI was required to make the ICU leakance value several times tighter than the starting value, which was the value derived in the ~ site-specific APT using conventional curve-matching techniques (and relatively close to the values ascribed to the region in general in the literature and in two regional models that included Area. IV near the boundary of their model domains— namely, the District's East Central Florida (ECF) model, which focused on the Orlando area.to the south and west, and its Volusia. model, which focused on Volusia County to the north). FOF 153 states: SDI's calibrated ICU leakance value derived from calibration to observed static. head differences is.more reliable than an ICU leakance value derived from an APT using conventional curve-matching techniques. That leaves a question as to the quality of the static head difference measurements used for SDI's calibration. Both findings are supported by competent substantial evidence. (T:1052-53,1303- 06,1735-37, 1899; Dist. Ex. 17; Dist. Ex. 128 at 7-13). The ALJ’s determination that 49 SDI's (the City’s consultant) calibrated ICU leakance value was “more reliable” that a leakance value derived from an APT using conventional curve matching techniques is an evidentiary determination reflecting the ALU’s decision of which evidence to credit. The Board may not disturb this finding. Petitioners acknowledge as much by rearguing the evidence in this exception and complaining that they were prevented from exploring conflicting leakance values after the ALJ made an evidentiary ruling regarding the scope of cross-examination. The Board disagrees with Petitioners’ contention that “acceptance of the ALJ’s findings would establish a precedent that groundwater water [sic] models do not have to accurately predict actual field conditions within the model domain.” The adequacy of groundwater modeling for a permit application is a case-specific determination. Finally, Petitioners contend that given their view of the deficiencies in the modeling, the ALJ “had no basis to conclude that reasonable assurances had been provided through the City’s most recent round of modeling.” They again seem to be making an argument with regard to a conclusion of law without identifying the District rule criterion for which “modeling” cannot provide reasonable assurance. — Petitioners incorporate their exceptions to FOFs 67-68, 122 and 151 (Exception Nos. 6, 7, 28 and 42) which are ruled upon elsewhere. Petitioners’ Exception No. 44 Petitioners take exception to FOFs 154-158 without Stating a legal basis for the exception and, therefore, the Board need not rule on it. Section 120.57(1)(k), F.S. Nevertheless, the exception is rejected for the reasons set forth below. FOF 154 states: 50 BFA took static head measurements at SAS and UFAS monitor wells located at Test Sites 1,2 and 3 in January 2004, April 2004, and July 2006. On each occasion, .a downward. head gradient was noted at each site, meaning the water table (i.e., the SAS) had a higher elevation than the potentiometric surface of the UFAS. In January 2004, the measured head difference at Test Sites:.1, 2.and 3 were 6.2 feet, 5.5 feet and 5.9 feet,.respectively. In April 2004, the measured head differences at Test Sites 1 and.3 were 8,1 feet and 8.1 feet, respectively. In July. 2006, the measured head differences at Test Sites 1, 2 /and 3-were 8.6 differences for the Area IV Weltfield was 7. 46 feet. FOF 155 states: BFA’s static head difference measurements included both wet and. dry. seasons. The measurements do not show significant differences between seasons and suggest that static. head difference remains fairly constant atthe Area IV Wellfield year round. This is typical of head difference data collected from hundreds of other.Florida locations because the hydrologic systems seek equilibrium. .. ’ FOF 156 states: Petitioners questioned taking an average.of the head difference measurements because the region had experienced a rainfall deficit of 17 inches over the 12 months.prior to time the measurements in July 2006. were.taken..B itself, a rainfall deficit would not affect héad difference measurements because the hydrologic system-would seek equilibrium. But there. was evidence of a.possibly significant rainfall near Area !V not long before the July 2006 measurements. If significant rain fell on Area IV, it could have increased the static head differences fo some extent. But there was no evidence that such an effect was felt by Area IV. FOF 157. states: Petitioners also.contend for several other reasons that the static head differences used by SDI as a calibration target were “not what they are cracked up to 'be." They.contend that "limited spatial-and temporal extent. . . renders them. inappropriate calibration targets.” But while the site-specific static head difference measurements were limited, and more measurements at different times would have increased the reliability of the average static head difference used in SDI’'s steady-state calibration, the head difference measurements used were adequate. For a groundwater model of Area IV, they were as good as or better than the head differences used by Petitioners’ expert modeler, Mr. LaFrenz of Tetratech, who relied on SAS and UFAS head levels from the regional-scale ECF model, which were measured by the United States Geological Survey (USGS) in May and September 1995. . 51 FOF 158 states: Petitioners also contended that the measured head differences used by SDI for the steady-state calibration of the March 2006 MODFLOW model were -Significantly higher than other measured head differences in the general vicinity of Area IV. One such location is Long Lake, which has saltwater and‘an- ~ obviously upward gradient (i.e., a negative head difference between the SAS and UFAS), whereas SDI’s MODFLOW depicts it as having a five-foot downward gradient (positive head difference). However, all but one of those measurements (including from Long Lake) were from locations five or more miles from Area IV. In addition, the accuracy of the measurements from the closer location (and all but one of the more distant locations) was not clear, so that the seemingly inconsistent head differences measurements may not be indicative of actual inconsistency with the head difference measurements used by SDI. In this exception, Petitioners contend that the ALJ “failed-to reconcile unrefuted testimony” regarding groundwater flow. Hence, Petitioners again seek to-have the Board reconsider and-reinterpret evidence, and the Board may not do so. These findings are supported by competent substantial evidence. (T:318-20, 1461-1467, 1520-22, 1732-1739, 1898-99, 2704-06, 5366-67, City Ex. 87, Pet. PRO at 79). Petitioners reference their exceptions to FOFs 94 to 102, which were ruled upon elsewhere. Petitioners’ Exception No. 45 Petitioners take exception to FOF 159 by simply incorporating their exceptions to FOFs 113, 114, and 151 (Exception Nos. 27 and 42). Since Petitioners fail to state a legal basis for the exception to this finding, the Board need not rule on it. Section 420.57(1)(k), F.S. Nevertheless, the exception is rejected for the reasons set forth below. FOF 159 states: Petitioners also accused. the City and its consultants of "playing games with specific yield" to achieve calibration with a tighter-than-appropriate ICU leakance value. But the City and the District adequately explained that there was no merit 52 to the accusations. It was appropriate for SDI to use just the relatively small specific storage component of SAS storativity (the 0.001 value) in its transient calibration runs, instead of the larger specific or delayed yield component. Storativity is not utilized at all in the MODLFOW steady-state calibration runs and steady-state simulations. This finding is supported by competent substantial evidence. (T:1717, 1 753, 1983-87). Petitioners’ exceptions to FOFs 113, 114 and 115 (exception Nos. 27 and 42) are addressed elsewhere. Petitioners’ Exception No. 46 Petitioners take exception to FOF 160 because it fails to reconcile the District's regional planning models with the City's site-specific model. Because Petitioners did not identify a proper legal basis for the exception, the Governing Board need not rule on the exception. Section 120.57(1)(k), F.S. Nevertheless, the exception is rejected for the reasons described below. FOF 160 states: Based on the foregoing, it is found that Petit ners’ factual disputes regarding SDI’s calibrated ICU leakance value do not make the City’s assurance of no unacceptable drawdown provided by its MODFLOW simulations unreasonable. That leaves several other issues raised by Petitioner [sic] with regard to the SDI s March 2006 MODFLOW ‘model. : Put another way, the ALJ finds that the factual disputes about'the value sesione te the leakance of the Intermediate Confining Unit (ICU); which is an input to the SDI March 2006 MODFLOW model, donot make the model’s conclusion unreasonable. ‘There is. competent substantial evidence to support this finding. (T:1719-29, 1322; Dist. Ex. 16). Petitioners’ exception is about the alleged failuré of the ALJ to reconcile regional planning models with the site-specific model. However, FOF 160 is about-a particular value for an input to the site-specific model. In any event, tothe extent that Petitioners 53 are asking the Board to reconcile conflicting evidence or make additional findings of fact, the Board must decline as it lacks the authority to do so. Fla. Power & Light, 693 So.2d at 1026-27. In this exception, Petitioners adopt the exceptions to FOFs 67, 68, 122, 151, 152, and 153 (exception nos. 6, 8, 28, 42 and 43). Those exceptions have been addressed elsewhere in this Final Order. Petitioners’ Exception No. 47 Petitioners take exception to FOF 161 without stating a legal basis for the exception and, therefore, the Board need not rule orit. Section 120.57(1)(k), F.S. Nevertheless’ the exception is rejected for the reasons set forth below. - FOF 161 states: In calibrating its MODFLOW model, SDI utilized a value for the MCU leakance that was twice as leaky as the published literature values for the area, which Petitioners claim would reduce simulated SAS drawdown. Although’ ‘the use of a higher MCU leakance value in the model may result in a prediction of less SAS drawdown, the actual effect, if any, on the predicted drawdown, \ was not’ ‘made clear from the evidence. : This finding is supported by competent substantial evidence. (7:1719-20; 5939-41 ). In their exception, Petitioners reargue the evidence and in effect are requesting the Board to reweigh and reinterpret the-evidence. As noted previously, the Board is.precluded from.doing so.. Petitioners adopt their exceptions to FOFs 122,151, and 153 (Exception Nos. 28, 42, and 43), which are ruled. upon elsewhere. Petitioners’ Exception No. 48 Petitioners take exception to FOF 162 on several grounds, including that the portion of the finding regarding the boundary conditions of the City's MODFLOW model 54 is not supported by competent substantial evidence. The exception is rejected for the reasons set forth below. FOF 162 states: Petitioners also accused the City and its consultants of using inappropriate or questionable boundary conditions, topography, and depth to the water table. They also contend that incorrect topography--namely, a nonexistent five-foot.ridge or mound northwest of Area IV—provides an artificial source of water for SDI's March 2006 MODFLOW model. But the boundary conditions for SDI’s. March 2006 MODFLOW model were clear from the evidence and were appro SDI's topography and water table depth were reasonably, accurate ‘and on a local scale, were as or.more. accurate than the USGS. topographi ‘ Petitioners were ‘comparing). Besides, Dr. Huyakom ran the Tetratech model with SDI's leakance value instead of Tetratech's value and | got virt ally the ame drawdown results, -proving that differences i in topography. ade. virtually nc n the drawdown.predictions of : the so-called "flow from nowhere," particle-tracking simulations conducted by experts from both sides established that, with pumping at 2.75 mgd, no water would enter the Area IV production zone from anywhere near the five-foot ridge area for at least 100 years. This, gave reasonable assurance that the five-foot. ridge or mound had no effect on the simulated results from SDI’s March 2006 _ MODFLOW model. 60, 1737-41, 190-08, 1996-97 3687-68, 4005-58 City Ex. 101; Dist Ex. 127). In their exception, Petitioners reargue and seek to explain the evidence and renew their objection to the rebuttal testimony of one of the District's expert witnesses. The Board lacks authority fo disturb the ALJ s evidentiary ruling regarding the admissibility ¢ of this | testimony, and the Board declines to reweigh or reinterpret the evidence. Petitioners reference their Exception No. 21 to FOF 100, which was ruled upon elsewhere. 55 Petitioners’ Exception No. 49 Petitioners take exception to FOF 163 without stating a legal basis for the exception and, therefore, the Board need not rule on it. Section 120.57(1)(k), F.S. Nevertheless, the exception is rejected for the reasons set forth below. FOF 163 states: Petitioners also contend that the City's failure to simulate drawdown from pumping during the dry season, as ‘Opposed toa long-term: average of wet and dry seasons, constituted a ‘failure "to provide reasonable assurances as to the conditions that can be expected asa result of the anticipated’ operation of the wellfields.” But the evid nce was clear that long-term, steady-state groundwater model simulations ar ‘appropriate and adequate to provide reasonable | purpo: es. See "Drawdown impacts,” infra. By e transient conditions suc} ary ‘season’ purnping. definition, ‘they do no | This finding is supported by competent substantial evidence. (T:1036, 2931, 3548,4074- 76; Petitioners’ PRO at 86). In this exception, Petitioners cOntend that the ALJ “failed to address” certain evidence and present argument that the District should have required the City to simulate a dry season period using the model on which the City relied during the hearing. The Board is precluded from engaging in fact-finding and reinterpreting the evidence and déclines to do so. Petitioners’ Exception No. 50 - Petitioners take exception to FOFs 165 and 167 without stating a legal basis for the exception and, therefore, the Board need not rule on it. Section 4 20.57(1)(k), F.S. Nevertheless, the exception is rejected for the reasons set forth below. FOF 165 states: It is found that SDI's March 2006 MODFLOW model for Area IV is the best such model in evidence. That is not to say that the drawdown predicted by SDI's model _ is a certainty. The other models were not proven to be better than SDI's, but they did demonstrate that simulated results would vary significantly in some cases if SDI's calibration and calibrated ICU leakance values were incorrect. Having more 56 good hydrologic information would have made it possible to reduce the uncertainties present in SDI’s model, but it is found that SDI’s March 2006 MODFLOW model was sufficient to give reasonable assurance as to SAS and UFAS drawdown from pumping at 2.75 mgd from the UFAS and 0. 18 mgd from the SAS for wetland augmentation. FOF 167 states: Using SDI’s March 2006 MODFLOW model, the City gave reasonable assurance that the drawdown predicted from pumping at 2. 75 mgd from the UFAS and _0.18 mgd from the SAS for wetland ‘au ill interfere with existing | legal users. The nearest exis located about one mile northwest and two miles east/s nearést proposed production well. The City’s MODFLO' scenarios indicate that n maximum drawdown i Vin the SAS feet and minimal (at most 2.2 fe: FAS a existing legal users, Obviously, drawdown would 0.75 mgd from the UFAS (with probably no wetland er required). — conclusion of law. The remainder of the findings in FOFs 165 and 167 are supported by competent substantial evidence. (T:845-47, 1111-12, 1121-24, 2761, 3615-18, 3668- 70, 4886, 5338; City Ex. 153B, 169, 291). Based on the ALu’s findings and its review of the record, including the remainder of FOF 167 and FOFs 168 and 169, the Board concurs with the ALJ’s recommended conclusion in the first sentence’ of FOF 167.” (7:1358, 1614-17). Petitioners reference their exceptions to FOFs 67, 68, 83, 116,122, 151-153, and 160-162, which have been riled upon elsewhere. Petitioners’ Exception No. 51 Petitioners take exception to FOFs 178 and 186 on the grounds that there was no competent substantial evidence about the potential environmental impact of withdrawals of 0.75 mgd. For the reasons described below, the exception is rejected. 57 FOF 178 states: If the drawdown is of the magnitude predicted by the SDI's March 2006 MODFLOW model, unacceptable environmental impacts from drawdown would not be anticipated. At 0.5 or 0.75 migd, there clearly would not be any unacceptable environmental impacts. FOF 186 states: The success of the augmentation plan depends on the extent of actual drawdown. If actual drawdown approximates Tetratech’s .predicti environmental impacts would not be acceptable, and t reasonable assurance that the augmentation plan we the. environmental impact. if drawdown is of the ma through the environmental avers fhe ges if the City mgd, the avoidance and minimization plan developed for the Area IV Wellfield probably would be unnecessary but certainly would be. capable « of offsetting any adverse changes in wetlands and other waters that would be detected through the environmental monitoring plan. : Both findings are supported by competent substantial evidence. (T:21 28-29, 2148-52, 3062-72, 3087-88, 4974-75; City. Ex. 288, 289, 290, 291). The Board agrees with Petitioners.to the extent that most of the-evidence presented at hearing, was about the environmental impact of withdrawals of 2.75 mgd, . rather than the lower allocation of 0.75 mgd recommended by the ALJ. We do not, however, agree that this results in.a lack of competent substantial evidence. The ALJ may reasonably infer from the evidence a factual finding. Freeze, 556 So.2d at 1206. In this case, the ALJ inferred that the environmental impact of withdrawing 0.75 mgd would be less than withdrawing 2.75 mgd. This is a reasonable inference, and even Petitioners acknowledge. in their exception that the ALJ “could potentially extrapolate that there would not be harm at 0.75 mgd.” 58 Petitioners’ Exception No. 52 Petitioners take exception to FOFs 179, 180, and 181 not because of a lack of competent substantial evidence but because they believe that the evidence demonstrates that the City cannot implement its environmental monitoring program. Petitioners argue that the City's current lack of legal access to the monitoring locations means that the City cannot implement the environmental monitoring plan. The exception is rejected for the. reasons below. FOF 179 states: In addition, “Other Condition” 12 of the proposed permit requires the City to perform, extensive environmental :monitoring.. The-environmental.monitoring plan proposed for the-Area !V Wellfield provides reasonable assurance that changes ‘to wetland hydrology and vegetation-due to groundwater withdrawals will be detected before. they become > signifi icant. FOF 180 states: “Other Condition” 12 of the proposed permit prohibits the. City from pumping any water from the-production. wells until the monitoring-network is in place. The baseline monitoring will-give.a clear indication of the existing conditions prior to the production wells coming on-line. ar FOF 181 states: Once the production wells are online, the City will continue the same procedures that they conducted prior to the production wells coming online. This will allow the City and the District to monitor the effects of pumping. The City's proposed environmental monitoring plan is adequate to detect drawdown impacts and is consistent. with environmental monitoring plans. that have been developed for other wellfieids throughout-the State of Florida. These findings are based on competent substantial evidence. (T:2138-9, 2146-47, 3084-6, 3160, 4959, 4970; City Ex. 288, 289, 290, 291). 59 Petitioners’ Exception No. 53 Petitioners take exception to FOFs 182 and 185 not because of a lack of competent substantial evidence but because they believe that the evidence demonstrates that the City cannot implement its augmentation plan. Petitioners argue that the City’s current lack of legal access to the atigmentation areas and the lack of a detailed augmentation plan means that the City cannot implement the-augmentation plan. For the reasons described below, the exception is’rejected. FOF 182 states as follows: . Since the City has given reasonable assurance that there will not be environmental harm from drawdown, the proposed permit does not propose mitigation. If unanticipated harm i is détécted; “Other Condition” 24 of the proposed permit requires the City to implement an’ avoidance and minimization plan’ to rehydrate the wetlands and restore the Water levéls to normal levels and natural hydroperiods by augmenting the water in the affected wetlands with water pumped from SAS wells and piped to the affected wetlands. - “Other Condition” 24 includes specific timeframes for implementing wetland rehydration in the event unanticipated impacts were to occur: ‘In addition, the City could, on its own, change its pumping schedules. If an impacted wetland’is near a:particular well, the City could reduce or shut off water withdrawals: from that well and thereby restore water levels in the wetland. - © There is competent substantial evidence to support this finding. (T:2150-51, 3087-89; City Ex. 291, 288, 289, 290). FOF ¥e5 states as follows: The City plans to have its augmentation plan in place prior +6 the production wells coming online. In that way, if changes are observed ‘within the wetland systems, the augmentation plan could be implemented in relatively short order to alleviate any impacts that might be’ occurring as a result of the production wells. ‘The terms “avoidance and minimization plan,” “wetland hydration plan,” and “augmentation plan” are used interchangeably in the Recommended Order. They refer to the Environmental Monitoring Plan and Avoidance/Minimization Plan dated March 15, 2006, which was admitted as City Ex. 288 at 39, and to the Addendum dated April 6, 2006, which was admitted as City Ex. 289. 60 Petitioners argue that there is no competent substantial evidence that the augmentation plan can be implemented “timely” or in “ninety days” or “prior to the wells coming online.” The finding states that the City plans to have the augmentation plan in place “prior to the production wells coming online” and that the augmentation plan-could be implemented “in relatively short order.” These words.are taken directly from expert witness testimony. (T:2150-51). In addition, the written plan submitted by the City states that the City plans to. gain legal access to the property required for both monitoring and augmentation shortly after issuance of the permit. (City Ex. 288 at 39). The transmission line for augmentation of wetland A4-2 will be constructed at the same time the production line i is constructed. (City Ex. 289 at 5). The smalier line from the transmission line to the wetland will be installed if impacts are observed. (Id. ). ' “Other Condition” 24 of the proposed permit can be summarized as follows: (1) If the District determines that unanticipated impacts occur to wetland A4-2, then the . augmentation plan that was submitted specifically for that wetland must be implemantéed within 90 days of notice, and (2) if the District determines that unanticipated impacts . have occurred to any other wetland, then the permitfee shall submit an augmentation plan within 30 days of notice and shall implement the plan within 90 days of the District’s approval. “(City Ex. 291). Augmentation plans for each wetland, if needed, would be tailored to the specific needs and circumstances of that wetland. (City Ex. 288, 291). For all these reasons, there is competent substantial evidence to support this finding. | We note that the City has some flexibility in addressing any unanticipated impacts. As the ALJ found in FOF 182, the City could change its pumping schedules. 61 Petitioners’ Exception No. 54 Petitioners take exception to a portion of FOF 187 that is actually more in the nature of a conclusion of law. For the reasons below, the exception is rejected. FOF 187 states: If unanticipated environmental harm occurs due'to excessive actual drawdowns, and the harm cannot be avoided either by the augmentation plan or by altering the pumping schedule, or both; the District can revoke all or part of the permit allocation under "Other Condition” 23. This ability gives reasonable assurance that no unacceptabie environmental harm will occur even if actual drawdown — approximates Tetratech's predictions. (Emphasis added.) Petitioners argue that the District's ability to revoke a permit does not provide reasonable assurance that no unacceptable environmental harm will occur. Generally, the ultimate determination of whether the facts found by the ALJ constitute " ‘reasonable assurance" of an applicant's entitlement toa regulatory permit is a decision that must be made, in n the final analysis, by the agency head, Tather than by an ALS. Fla. Audubon Soc cy, Inc. Vv. South Fla. Water Mamt. Dist., 26 F. A. L R. 2173, 2198 (SFWMD 2002); Singer Island Civic Assn. v. Simmons, 24 F. A. L. R. 1298, 1301 (DEP 2002); Miccosukee Tribe of Indians V. South Florida Water Mamt. Dist. 20 F.A.L.R. 4482, 4491 (DEP: 1998), affirmed, 721 So.2d 389 (Fla. 3d DCA 1998); Fla. Bay Initiative v. Fla. Dep t of Transp., 19 FA. L. R. 3712, 3796 (SFWMD 1997); Save Our Suwannee v. Piechocki, 18 F.A.L.R. 1467, 1471 (DEP 1996); Barringer ve E. Speer and Assoc., 14 FALR 3660, 3667 n.8 (DER 1992). Therefore, the Board has authority to reject or modify this COL in accordance with Section 120.57(1)(I), F.S. In this case, District staff testified that to their knowledge the District has not revoked a permit for the purpose of halting unanticipated harm. (7:3143-47). Instead, other measures were implemented to abate the harm. (T:3088-89, 3145-47, 3155-58). 62 Ideally, permits will have measures in place to address unanticipated harm in order to avoid reaching a point where permit revocation becomes necessary (for example, make pumping changes, shut off certain wells). We do not interpret the last sentence of FOF 187 to state that the District's ability to revoke a permit constitutes reasonable assurance on the part of the permittee. Such “an interpretation would be illogical. When considered in the context of the other paragraphs in the Recommended Order, the finding is simply the following: Under the worst case scenario, if the consumptive use results in the drawdown predicted by Petitioners’ model (which was based on a withdrawal of 2.75 mgd rather than the lower allocation recommended by the ALJ), and harm cannot be avoided or mitigated by augmentation and/or reduced pumping or other measures, then the District has the ability to revoke all or part of the permit. (rs 3143-47: cy Ex. 291). . Petitioners’ Exception No. 55 Petitioners take exception to FOFs 189 and 193 without stating a legal basis for the exception and, therefore, the Board need not rule on it. Section 120. 57(1Vk F.S. These findings describe the City’ s modeling efforts with regard to saline water intrusion (chloride concentrations) and the efforts it undertook to respond to criticisms and deficiencies in the modeling raised by Petitioners. Petitioners do not contend that these findings are not supported by competent substantial evidence. The findings are supported by competent substantial evidence. (1 525-29, 2672, 291 0-1 3, 2933-34). In their exception, Petitioners review the chronology of the models developed for the City’s application and state that they: object and take exception to any and all findings based upon modeling that was developed more than five years-after the Application was submitted, several 63 years after the litigation was commenced and months after the deadline established by the Administrative Law Judge to submit new modeling. The decision to admit evidence falls to the ALJ as fact finder in this proceeding and the Board may not disturb the ALJ’s evidentiary rulings. In addition, the Board notes that an . administrative hearing is a de novo proceeding intended to formulate final agency action. Section 120.57(1){k), F.S.; Dept. of Transp., 386 So.2d at 786-787. The de novo nature of the hearing means that the evidence is presented anew, as if for the first time. As such, the City was not precluded from developing information to support its permit application after petitions for administrative hearing had been filed. : Petitioners’ Exception No. 56 Petitioners take exception to FOF 194 without stating a legal basis for the exception and, therefore, the Board need not rule on it. Section 120.57(1)(K), F.S. This finding describes some of the case’s procedural history, and Petitioners’ exception alleges that the first sentence of the finding “incorrectly states the procedural history of the case.” To the extent that Petitioners are requesting the Board to make additional - findings of fact, the Board may not, and declines to do so. In any event, any ruling on this exception would not affect the outcome of the proceeding. Petitioners’ Exception No. 57 Petitioners take exception to FOF 195 on the grounds that the rebuttal evidence referenced in this FOF “does not provide competent substantial evidence for reaching any conclusions as to results that would be obtained if SDI [the City’ s consultant correctly input TDS [total dissolved solids].” In this exception, Petitioners also “object and except to any findings based upon modeling they never had a chance to review.” The exception is rejected for the reasons set forth below. 64 FOF 195 states: Petitioners also criticized the City for not using a newer version of SEAWAT, called SEAWAT 2000, as well as for using chloride concentrations as inputs for its SEAWAT 2.1 model simulations instead of total dissolved solids (TDS). (SEAWAT 2.1 required input of TDS, not chlorides; SEAWAT 2000 allowed chlorides to be input. Not until the last day of the final hearing was it pointed out by Dr. Huyakom that using chlorides instead of TDS caused SDI’s SEAWAT 2.1 simulations to over-predict saltwater intrusion.) As a result of Petitioners’ criticisms, the City had SDI re-run both the April and early August SEAWAT 2.1 models in late August 2006 using SEAWAT 2000 (which the City and the District also termed "sensitivity runs.") This finding is supported by competent substantial evidence. (T:5961-62, Dist. Ex. 185 at 5, 6). The decision to admit evidence, including rebutial testimony and to the ALJ as fact finder in this proceeding and the Board may not, and it declines to, disturb the ALJ’s evidentiary rulings. Finally, the Board disagrees with Petitioners’ contention that adopting this finding would “create a precedent that a model can be run incorrectly, calculate fluid densities incorrectly and still provide reasonable assurance.” As noted previously, the. adequacy of groundwater modeling for a permit application isa case-specific determination. Petitioners’ Exce tion No. 58... Petitioners take. exception to FOF 197 without stating a legal basis for the exception and, therefore, the Board need not rule on it. Section 120.57(1)(k), F.S. . Nevertheless, the exception is rejected for the reason set forth below. FOF 197 states: During Petitioners’ discovery of SDI's August SEAWAT 2000 model simulations, it came to SDI's attention that SDI was not calculating mass outputs from the model correctly. Those errors were corrected by SDI in September 2006. This finding is supported by competent substantial evidence. (T: 1614-17, 1358). Petitioners’ only contention in this exception is that the corrections to the mass output calculations “were not presented to them until after a deadline established by the ALJ for additional modeling ...and should not have been allowed so late in the process.” The decision to allow the introduction of evidence falls to the ALJ as the fact finder in this proceeding and the Board may not, and declines to, disturb the ALJ’s evidentiary rulings. Petitioners’ Exception No. 59 Petitioners take exception to FOF 200 without stating a legal basis for the exception and, therefore, the Board need not rule on it. Section 120.57(1)(k), F.S. Nevertheless, the exception is rejected for the reason set forth below. FOF 200 states: That prediction does not, however, mean the chloride concentration in these wells will exceed'250 mg/l in actual operation. The SDI model contains several conservative assumptions that magnified the potential chloride concentrations in those wells. First, it was assumed all the production wells would‘be drilled to 250 feet below land surface, while the City will likely drill the southemmmost wells to a shallower depth. Additionally, the wellfield production rate used in the model was not optimized for water quality. Finally, the model was not set up to simulate a wellfield operation plan that turned wells’on and off based on ‘the saliné water monitoring plan. For the sake of simplicity, the model assumed that all the wells would operate 24 hours a day, 7 days a week, for the entire 15 year period. This finding is supported by competent substantial evidence. (T:1168, 1171, 1203-07, 1828, 1830-31, City Ex.150). Petitioners’ exception does not seem to addreés the findings in this FOF. Rather, they argue that the ALJ “fails to address” certain testimony presented by their expert witness and disregards other evidence, and that'the District “should not accept a non-calibrated model as providing reasonable assurances.” The decision to believe one expert over another is left to the ALJ as the fact finder and cannot be altered absent a complete lack of competent substantial evidence from the finding could be reasonably inferred. Fla. Chapter of Sierra Club, 436 So.2d at 388-89. 66° The Board is precluded from making additional findings of fact and declines to.do so. Moreover, competent substantial evidence was presented supporting the fact that the City’s model was properly calibrated. (T: 6039-42, 6045, City Ex. 744.12). Petitioners reference their exceptions to FOFs 124-136, 208, and 210, which have been ruled upon elsewhere. Petitioners’ Exception No. 60 Petitioners take exception to FOF 202 on substantially the same grounds as those stated in Exception No. 57 to FOF 195. Based on its ruling on Petitioners’ Exception No. 57 (to FOF 195), the Board also rejects this exception. - Petitioners’ Exception No. 64 Petitioners take exception. to FOF. 205 without stating a legal basis for the exception and, therefore, the Board need not rule on it. Section 120.57(1)(k), F.S. Nevertheless, the exception is peigcted for the reason set ‘forth below. FOF 205 states: 7 SDI used achloride concentration of O.mg/! for the, SAS and ICU in its. August 2006 SEAWAT. model, which probably does not repre ant the. actual initial condition but is poet close enough since the SAS is.1 charged by seal that -initial chloride values for the Area IV Nel ue This finding is supported by competent substantial evidence. TA 1 56, 1158-61, 4197- 1198, 3407-08, 3410; City Ex. 131, 132, 305 at 21 and 22). In their exception, Petitioners argue that the ALJ “fails to reconcile” what Petitioners believe to be “nonconservative assumptions” regarding the surficial aquifer chloride concentrations used by the City with the “conservative assumptions” referenced in FOF 200.-In 67 addition, Petitioners cite evidence that appears to conflict with the finding in this FOF regarding chloride concentrations in the SAS. The Board may not, and declines to, engage in making additional findings of fact. Petitioners’ Exception No. 62 Petitioners take exception to FOF 206 without stating a legal basis for the exception and, therefore, the Board need not rule on it. Section 120.57(1)(k), F.S. — Nevertheless, the exception is rejected for the reason set forth below. FOF 206 states: To develop the initial chloride concentration conditions of the UFAS for its August 2006 SEAWAT model, SDI first plotted the available water quality data (63 well-data points) on a map of the Area IV Wellfield area: After ‘examining the distribution of the data, SD/ divided the UFAS into two layers to represent the upper UFAS (above -200 feet NGVD) and the lower UFAS (below -200 feet NGVD). Then, using various scientific studies containing chloride concentration maps, groundwater recharge/discharge maps (recharge indicating an area‘is more likely to have low chlorides in the UFAS and discharge indicating an area is more likely to have high chlorides), and-maps showing the shape and éxtent of the’ freshwater lens in the area, plus SDI’ sown knowledge of groundwater flows and expected higher chloride concentrations along the coast and St. Johins River, SDI used scientifically accepted hand-contouring tecl ues to represent the initial chloride concentration conditions of the upper a rt SDI's two hand-c chloride concentration values from those maps int model. The chloride concentration values from the upper UFAS map were input into layers 3 through 7 of SDI's August 2006 SEAWAT model. The chloride concentration valués from the lower UFAS map were input ‘into: layers 11 - through 14 of SDI's August 2006 SEAWAT model. This finding is supported by competent substantial evidence. (T:1174-78, 1180-91, 2040, 2670, 3268-78; City Ex. 142, 143, Dist. Ex. 108 at 12). In this exception, Petitioners allege that the ALJ's findings “are internally inconsistent” without explaining to which findings in the Recommended Order they are referring and argue that the ALJ 68 “improperly allowed SDI to disregard high chloride concentrations.” The Board declines to reinterpret the evidence or revisit the ALJ’s evidentiary rulings. Petitioners reference their Exception No. 59 to FOF 200, which was ruled upon elsewhere. Petitioners’ Exception No. 63 Petitioners. take exception to FOF 208 without stating a legal basis. for the exception and, therefore, the Board need not rule on it.. Section 120.57(1)(k), F.S. Nevertheless, the exception is rejected for the reasons set forth below. FOF 208 states: Petitioners accuse SDI, the City, and the District of ignoring unfavorable chloride data in setting up its August 2006 SEAWAT 2000 model. The evidence was that all chioride data was considered and evaluated. : This finding is supported by competent substantial evidence. (T:2730, 2973-79, 1569- 76). In this excaption, Petitioners contend that: [blecause all of the SEAWAT modeling submitted on behalf of the City fail [sic] to incorporate the actual measured chloride values at the.bottom of the ArealV — . Wellfield, the models cannot reliably predict the anticipated saltwater intrusion that will experienced at. the wellfield or the ability of the resource to.produce the requested amount of water. Petitioners also argue that accepting the City’s input values would establish a “detrimental” precedent to future CUP evaluations and establish "9 precedent for disregarding Packer Test measurements.” The Board’s review of the record indicates that chloride values from the packer tests at test sites 1 and 3 were in fact used in the August 2006 SEAWAT modeling on which the City is relying. (T:1 566, 1570-71, 3287- 89; City Ex. 142, 143; City Ex. 293 at 6,7,9,10; City Ex. 305 at 25, 44, 62). In any event 69 and as noted previously, the adequacy of groundwater modeling for a permit application is a case-specific determination. Petitioners reference their Exception No. 59 to FOF 200, which was ruled upon elsewhere. Petitioners’ Exception No. 64 Petitioners take exception to FOF 21 0 without stating:a legal basis for the exception and, therefore, the Board need not rule on it. Section 120.57(1)(k), F.S. Nevertheless, the exception is rejected for the reasons set forth below. FOF 210 states: Mr. Davis and the District’s experts did not utilize the 2,336 mg and 2,717 mg/1 chloride concentration packer test’ measurements at 442-500 feet below land surface at Test Sites.1 and 3 to prepare the chloride contour maps for the UFAS because they believed these measurements from the MCU. This finding is supported by competent substantial evidence. (T:331 6-1 7). -In their exception, Petitioners essentially are rearguing the evidence and allege that the ALJ “failed to address” what Petitioners characterize as “undisputed evidence” and failed to reconcile certain evidence in the record. The Board may not, and declines to, reweigh the evidence. | | ; Petitioners reference their exceptions to FOFs 124-136, 200, and 208, which were ruled upon elsewhere. Petitioners’ Exception No. 65 Petitioners take exception to FOF 211 without stating a legal basis for the exception and, therefore, the Board need not rule on it, Section 420.57(4)(b), F.S. Nevertheless, the exception is rejected for the reasons set forth below. FOF 211 states: 70 Mr. Davis and the District's experts deemed it inappropriate to utilize a 845 mg/l chloride value reported for Test Site 2 to prepare the chloride contour for the lower portion of the UFAS because this sample was collected at just 210 feet below land surface and because a 500 mg/l contour line separates a 882 mg/l measurement at Test Site 1 from a 134 mg/l measurement at Test Site 3. The decision not to include the Test Site 2 data also is supported. by the particle tracking modeling prepared by the Petitioners and the City using the groundwater component of the SDI SEAWAT model and the TetraTech-model, which show that water from Test Site 2 will not enter the Area IV production wells for at least 100 years with pumping at 2.75 mgd. This finding is supported by competent substantial evidence. (T:3287-89, 6078-80; City Ex. 744.18, 744.21, 744.22). In their exception, Petitioners essentially are rearguing the evidence and argue that the ALJ “failed to reconcile” conflicting evidence. The Board may not, and declines to, reweigh the evidence. Petitioners’ Exception No. 66 Petitioners take exception to FOF 212 without stating a legal basis for the exception and, therefore, the Board need not rule on it. Section 120.57(1)(k), F.S. Nevertheless, the exception is rejected for the reason set-forth below. FOF 212 states: The chloride contour maps developed by Mr. Davis and the.District experts were consistent with previous studies conducted by the USGS and the District in the region. For example, the chioride contours shown on City. Exhibit 142 for the upper portion of the UFAS are generally consistent with Figure 35 of the 1990 USGS Report by Charles Tibbals and Figure 15 of the 1999 District Report by Toth and Boniol. This finding is supported by competent substantial evidence. (T: 4485+ 91, 3268-72; City Ex. 142, 521, 523). Petitioners reference their exceptions to FOFs 124-1 32 and 200. However, Petitioners did not take exception to FOFs 128-1 31. The remaining exceptions were ruled upon elsewhere. 71 Petitioners’ Exception No. 67 Petitioners take exception to FOF 213 without stating a legal basis for the exception and, therefore, the Board need not rule on it. Section 120.57(1)(k), F.S. Nevertheless, the exception is rejected for the reasons set forth below. FOF 213 states: The two chioride contour maps developed by Mr. Davis and the District's experts are a reasonable representation of the existing water quality of the UFAS in the region of the Area IV Wellfield based on the available data. This finding is supported by competent substantial evidence. (T:1184-85, 3271-78, City Ex. 142, 143, 293). Petitioners adopt their exceptions to FOFs 124-132, 200-and:208. However, Petitioners did not take exception to FOFs 128, 129, 130’or 131.. The Board has: provided rulings elsewhere on those FOFs to which Petitioners did take exception (Exception Nos.30 and 31). Petitioners’ Exception No. 68 _ Petitioners take exception to FOF 214 without stating a legal basis for the exception and, therefore, the Board need not rule on it. Section 120.57(1)(k), FS. Nevertheless, the exception is rejected for the reasons set forth below. FOF 214 states: Mr. Davis used the 882 mg/l chloride concentration packer test measurement from the interval between 331 and'400 feet at Test Site 1 as the starting chloride concentration in four grid celis at the bottom of the UFAS, which Petitioners’ experts referred to as a "pinnacie” or "column," that were assigned a chloride value of 700 mg/l. While the representation may not have been realistic, and the ' "pinnacle" or “column” quickly | “collapses” when the model begins to run, the representation was a concession to the existence of the datum even though it‘appeared at odds with water quality collected from a packer test at Test Site 3 at the same depth interval, which was much fresher. District staff agreed with Davis’ 72 approach to representing the saltier packer test measurement from Test Site “4, This finding is supported by competent substantial evidence. (T:1605-07, 2050-51, 3358-59, 3999). In this exception, Petitioners attempt to-reargue the evidence by - challenging the data that was used in the City's modeling and contending that the ALJ “fails to reconcile” certain testimony. The Board may not, and declines to, reinterpret or reweigh the evidence or make additional findings of fact. Petitioners’ Exception No. 69 . Petitioners take exception to FOF 215 without stating a legal basis for the exception and, therefore, the Board need not rule on it. Section 120.57(1)(k), F.S. Nevertheless, the exception is rejected for the reasons set forth below. FOF 215 states: The initial chloride concentrations developed for the UFAS by Mr. Davis and Petitioners’ consultants from Long Lake. The lake is located i in an area of the map where the chloride concentration in the UFAS, which discharges into the lake at that location, is between 1,000 and 5,000 mg/l. This finding is supported by competent substantial evidence. (T:1580-81; Pet. Ex. 110). In this exception, Petitioners again reargue the evidence and then state that “[t]he District should not establish a = Prete of audi medion that atingooursiay, contention, the ALJ found that the City’s i was reasonable. As noted ; ‘previously, the adequacy of groundwater modeling for a permit application is a case- specific determination. 73 Petitioners’ Exception-No. 70 *Petitioners take exception to FOF 216 only by adopting their exceptions to FOFs 124-136 and 200, 208, and 210. The Board notes that Petitioners did not take exception to FOFs 128-131. For the reasons set forth in its rulings on Exception Nos. 30, 31, 32, 59, 63, and 64, this exception is rejected. Petitioners’ Exception No. 71 Petitioners take exception to FOF 217 only by adopting their exceptions to FOFs 124-136 and 200, 208, and 210. The Board notes that Petitioners did not take exception to FOFs 128-131. For the reasons set forth in its rulings on Exception Nos. 30, 31, 32, 59, 63, and 64, this exception is rejected. Petitioners’ Exception No. 72 Petitioners take exception to FOF 218 without stating a legal basis for the exception ahd, therefore, the Board néed not rule on it. Section 120.57(1)(k), F.S. Nevertheless, the exception is rejected for the reasons set forth below. FOF 218 states: Related to the last point is Petitioners’ claim that the top of the MCU (i.e., bottom of the UFAS) is incorrectly represented in-SDi's SEAWAT models at 450 feet below sea level (approximately 425 feet below land surface). They point to literature values indicating that the depth to the MCU is Up to 150 feet greater. However, these reports did not include site-specific data or test wells in the vicinity of the Area IV Wellfield or in northern Brevard County. it was reasonable to consider and rely on site-specifit ic. information regarding the depth | to the MCU in this case. Petitioners take exception to this finding by adopting their exceptions to FOFs 86-92. The remainder of the exception attempts to reargue the evidence. The finding is” supported by competent substantial evidence, and the Board concurs with the ALJ’s 74 ultimate finding in this FOF. (T:3427,.4887). In addition, the exception is rejected for the reasons set forth in the Board’s rulings on Exception Nos. 13 through 17. : Petitioners’ Exception No. 73 Petitioners take exception to FOF 219 without stating a legal-basis for the exception and, therefore, the Board need not rule on it. Section 120.57(1)(k), F.S. In this exception, Petitioners simply adopt their exception to FOF 218. For the reasons set forth in its ruling on Exception No. 72, this exception is rejected. In addition, this finding is supported. by competent substantial evidence. (T:789, 3317, 3426,. 4103-4; City Ex. 86; City Ex. 305 at 27, 50, 93-94, 98-99, 108, 118). Petitioners’ Exception No..74 Petitioners take exception to FOF 220 without stating a legal basis for the exception and, therefore, the Board need not rule on it. Section 1 20.57(1)(k), F.S. For the reasons, described below, the exception is rejected. FOF 220 states: The lithologic log for well site 1 indicates the presence of gray/tan limestone between 450 to 460 feet below land surface and light/gray limestone-and | dolomitic limestone from 460 to 470 below land surface. The lithologic log for well site 3 indicates the presence of tan dolomitic limestone from 450'to 460 feet below land surface and tan limestone and dolomitic limestone from 460 to 470 feet below land surface. According to Petitioners’ own-expert, Dr. Missimer, the change to a mixture of limestone and dolomite is evidence of the MCU. After examining the video log for well site 1, Dr. Missimer notéd a "lithologic change” at 477 feet below land surface (while still disputing BFA's conclusion that the MCU started there). In this exception, Petitioners simply adopt their exception to FOF 218 and essentially are requesting that the Board reinterpret the testimony of one of Pétitioners’ expert witnesses. The finding is supported by competent substantial evidence. (T: 3826-4100, 4103-04; City Ex. 305 at 93-94, 736.114). In addition, the exception is rejected for the 75 reasons Set forth in the Board's ruling on Exception No. 72. Finally, the Board may not, and declines to, reinterpret the evidence presented to the ALJ. Petitioners’ Exception No. 75 Petitioners take exception to FOF 221 without stating a legal basis for the exception and, therefore, the Board need not rule on it. Section 1 20.57(1){k), FS. Petitioners take exception to this finding only by adopting their exception to FOF 218 and rearguing the evidence regarding the City’s groundwater modeling; testing program and flow zones. For the reasons described below, the exception is-rejected. FOF 221 states: One characteristic of the MCU is a lower resistivity. At well'site 1, a‘reduction in resistance occurred at approximately 470 feet below land surface. Another characteristic of penetrating the MCU is decrease in flow. The flow meter-log for well site 1 suggests a Secrease j in flow at approximately 450 feet below land surface. This finding is supported by competent substantial evidence. (1:771-72, 802-03, 3826- 27; City Ex. 305 at 108). In addition, the exception is rejected for the reasons set forth in the Board's ruling on Exception No: 72 (FOF 218). Finally, the Board may not, and declines to, reinterpret the evidence presented to the ALJ. Petitioners’ Exception No. 76 Petitioners take exception to FOF 222 without stating a legal basis for the exception and, therefore, the Board need not rule on it. Section 120.57(1)(k), F.S. For the reasons described below, the exception is rejected. FOF 222 states: On the other hand, it also is true that wells drilled completely into the MCU probably would not produce more than approximately 5. gallons per minute (gpm), whereas the packer test at the bottom of Wellsite 1 was yielding 25 gpm, and the packer test at the bottom of Wellsite 3 was producing 85 gpm. Iti is 76 possible that the bottom packers were open to both the UFAS and the MCU, which could explain the higher flows. Petitioners take. exception to this finding only by adopting their exceptions to FOF 86-92 and contending that this finding is “inconsistent with the cori¢lusions of the source of the low quality water contained in Finding of Fact 210 and 216." This finding is supported by competent substantial evidence. (T: 225-26, 816, 1053-55, 1383-85, 2668-70: City Ex. 62, City Ex. 305 at 27, 50, 63, 83-84, 88-89, 98, 108). Petitioners adopt their exceptions to FOFs 86-92 (Exception Nos. 12, 13, 14, 15, 16, and 17) and these are ruled upon elsewhere. ‘Given that there was competent substantial evidence to support the location of the MCU as found by the ALJ, the AL's findings are-not inconsistent as Petitioners contend. . _ - Petitioners’ Exception No. 77 Petitioners take exception to FOF 223-without stating a legal basis for the exception and, therefore, the Board need not rule on it. “Section 120.57(1)(k), F.S. They take exception only by adopting their exceptions to FOFs 200, 208, 210 and 214 and rearguing the sufficiency of the City’s modeling. For the reasons, described below, the exception is rejected. ~ . FOF 223 states: Petitioners maintain that BFA stopped drilling too soon (500 feet below land . Surface, or 475 feet below sea level) to ascertain. the, actual depth to the MCU. While it is true that drilling deeper would have made BFA's determination as to the depth to the. MCU more convincing and certain, BFA's. approximation of the depth to the MCU was reasonable for purposes of SDI's SEAWAT model. _ This finding is supported by competent substantial evidence. (7:225-26, 757-58, 794, 796-97, 1053-55, 2668-70, 3427-29, 3610-12: City Ex. 62; City Ex. 305 at. 27, 50, 63, 83-84, 88-89, 98, 108). 77 Petitioners reference their exceptions to FOFs 200, 208, 210, and 214, which have been ruled upon elsewhere. Petitioners’ Exception No. 78 Petitioners take exception to FOF 224 without stating a legal basis for the exception and, therefore, the Board need not rule on it. Section 120. 5114), F.S. Nevertheless, the exception i is rejected for the reasons set forth below. FOF 224 states: To the extent that BFA might have been wrong on the depth to the MCU, ‘there was no ‘convincing evidence that the error would have made SDI's SEAWAT model results unreliable. To the contrary, Dr. Huyakom testified ‘that, 6vén if SDI put the MCU 75 feettoo high; the laber given’ to the interval is not critical to the reliability of the modeling results. More important are the parameters for transmissivity and leakance assigned to aquifers and ‘ confining units. Dr. Huyakorn testified that, given the aquifer parameters assigned to the intervals, SDI's SEAWAT modeling results would be" reasonably reliable. ; This finding i is supported by competent substantial evidence. Cr: 1923: 3-29) In the exception, Petitioners seek to reargue the evidence and, as noted previously, the Board may not, and declines to, reinterpret the evidence presented to the ALJ. Petitioners’ Exception No. 79 Petitioners take exception to FOF 228-230 by adopting their exceptions to FOFs 133-1 36, 200, 208, 210 and 214 and contend “there is no competent evidence to support a finding that a four day APT, even pumping at high rates, provides a reliable basis fo assessing the long-term impacts from of pumping from a municipal wellfield.” For the reasons, described below, the exception is rejected. FOF 228 states: The evidence was sufficient to provide reasonable assurance that the proposed consumptive use from the Area IV Wellfield will not cause significant saline water 78 intrusion; further aggravate currently existing saline water intrusion problems; induce significant saline water intrusion to such an extent as to be inconsistent with the public interest; or harm the quality of the proposed source of water. FOF 229 states: First, the long-term constant rate pump tests, which were conducted as part of the APT, give some indication of the potential for saltwater intrusion. While only one well was pumping during the tests, water quality did not degrade at pumping rates that far exceeded what would be approved as part of the proposed permit. During four-day pump tests in which the wells at sites 1 and 3.were pumped at approximately 1 mgd, chlorides never exceeded approximately 74 mg/l. FOF 230 states: Second, while (as with drawdown predicted by, the. groundwater flow modeling) saltwater-movement predicted by the City's SEAWAT simulations.is not a certainty;-the simulations gave reasonable. assurance that the requested. allocation could be withdrawn from the-Area IV Wellfield without-excessive changes to water quality (specifi ically chlorides) and that there is an adequate thickness of freshwater at the Area.!V Wellfield that could. supply-the requested. allocations of water for 15 years without saline water intrusion, especially since it is unlikely that a number of the wells will actually be constructed to the 250-foot depth.assumed in the model, particularly as one moves south along the railroad right-of way. Although labeled asa ‘finding of fact, FOF 228 is a conclusion of law. Battaglia Properties v. Fla. Land and Water Adjudicatory Commission, 629 So.2d 461, 168 (Fla. 5th DCA 1994). The conclusion of law is within the Governing Board’s substantive jurisdiction and, therefore, may be rejected or modified in accordance with section 120.57(1)(I), F.S. FOF 229isa finding of fact. FOFs 229 and 230 are supported by competent substantial evidence. (T:811-12, 824-25, 1 167-71 1203-07, 1827-31, 1903-07, 5954-63, 2746-48, 2988-90, 3843-44 5954-63). Based on its review of the record and the ALJ’s findings in FOFs 229 and 230, the Board concurs with the conclusion of law in the paragraph labeled FOF 228. Petitioners reference their exceptions to FOFs 133-1 36, 200, 208, 21 0, and 214, which were ruled upon elsewhere. 79 Petitioners’ Exception No. 80 Petitioners take exception to FOF 231 because “[iJt is inappropriate to evaluate the anticipated impacts of a multi-million dollar wellfield based upon approximately two years of withdrawals.” Because Petitioners did not identify a legal basis for the exception, the Governing Board need not rule onthe exception. Section 120.57(1)(k), F.S. Nevertheless, for the reasons described below, the exception is rejected. FOF 231 states: Third, it is even more unlikely that saltwater intrusion will occur before the proposed permit expiration in.2010. Due to the time required to construct the facility, itis anticipated that the Area !V Wellfield will become operational-in 2009. Assumiirig the City’seeks to renew the permit, there ‘would be riore information on saltwater intrusion for the District to consider on permit renewal. This finding is supported by competent ‘substantial evidence. (1:1203, 2423-25, 2746- 47, 2760, 3485- 86; City Ex. 26, 180, 291). | Petitioners appear to be re-arguing their position that the District should evaluate saltwater intrusion for a period longer than the duration of the permit. The City. requested a permit duration through December 31, 2010. fe 3107; City Ex. 291). To demonstrate compliance with the permitting criteria, applicants must provide reasonable _ assurance for the duration of the permit (T:3158-59; 3482-83), Even so, in this case, the City's SEAWAT model indicates that there would be no significant saltwater intrusion for at least 15 years, based on the requested allocation of 2.75 mgd (rather than the lower allocation recommended by the ALJ). (T:2746-47, 2760; City Ex. 150; FOFs 198-201, 230). In this exception, Petitioners reference their exception to cot 281 (Petitioners’ Exception No. 92), which is ruled upon elsewhere. 80 Petitioners’ Exception ‘No:.81 Petitioners take exception to FOFs 240, 241, and 242 on the grounds that they are not supported by competent substantial evidence. For the reasons described below, the exception is rejected. FOF 240 states: Contrary to Petitioners’ contentions, the District's. rules do. not require. that an applicant own the property where the proposed production wells or monitoring wells are to be located. The District has-issued many:CUPs.where either the. subject property or the property associated with the monitoring requirements of the permit are not owned by the. applicant. Recent examples include the CUPs for Orange County Utilities and the Orlando Utilities Commission. This makes sense when the applicant has the power of eminent. domain or some other credible means of obtaining necessary ownership 0 or control, such as an option contract. : ; FOF 241 states: The District's permit application form has a. section that requires.the applicant to identify who owns or conirols the land on which the facility will be located. The -District-uses: this. information for noticing and.contact.information..Contrary to... Petitioners’ contentions, this section of the permit application form is not intended to create a substantive permitting standard requiring:preperty ownership before a consumptive use.permit can be issued. FOF 242 states: Petitioners argue that proof of ownership or control is necessary to determine whether a drawdown from a proposed water use will.adversely affect stages or vegetation on lands other than those owned, leased, or otherwise controlled by the applicant. However, the evidence was that-these impacts can be assessed based on the facts of this case. These findings are proper and are based on competent substantial evidence. (T: 161- 62, 2420-42, 2763, 3080-81, 3466-67, 3517-19). . In each of these findings, the ALJ acknowledges that his finding is contrary to Petitioners’ position. Thus, Petitioners appear to be stating their disagreement with District rules rather than making exceptions in accordance with Section 120.57(1)(k), 81 F.S. In fact, there is nothing in Chapter 373, F.S., Chapter 40C-2, F.A.C., the Applicant's Handbook, or the application form (Form 40C-2-1082-1) that requires the applicant to have ownership or control of the property prior to issuance of a permit. For example, the application form contemplates that the applicant might not have ownership or control and therefore includes separate information blocks for the “applicant” and “owner.” In another example, Section 373.2235, F.S., states that a CUP applicant can “elect” to acquire a wellfield before obtaining a CUP, which naturally means that an applicant can choose not to acquire the site before obtaining the CUP. An applicant must be able to implement the permit. Otherwise, the applicant has not demonstrated that it needs the permit. (T:3518-19). In this case, the City will be able to obtain the necessary property interests by exercising its condemnation authority (if it is unable to negotiate a transaction). (T: 3518-19; Section 180.22, F.S.). For whatever reason, the City has chosen to seek the permit before commencing eminent domain proceedings. in another case, a city obtained a consumptive use permit from the District before condemnation proceedings in order to demonstrate that the use of eminent domain was for a public purpose. City of Cocoa v. Holland Properties, Inc., 625 So. 2d 17, 20 (Fla. 5" DCA 1993). In this exception, Petitioners reference their exception to FOF 247 (Exception No. 84), which is ruled upon elsewhere. Petitioners’ Exception No. 82 Petitioners take exception to FOF 243 on the grounds that the last sentence is not supported by competent substantial evidence. For the reasons described below, the exception is rejected. 82 FOF 243 states: The City’s need to eventually obtain ownership or legal control to exercise the rights granted by the proposed CUP may be problematic in this case and is.a factor to be considered in the next two issues raised and maintained by Petitioners: whether the Area IV Wellfield is an economically feasible option; and whether the City has provided reasonable assurances that its project can become operational before the expiration date of the proposed permit. But it is not a reason to automatically deny the City's proposed CUP. (Emphasis added.) Petitioners object to the last sentence, which is supported by competent substantial evidence. (T:2420-42, 2763, 3080-81, 3466-67, 3517-19). Petitioners argue that the District should consider the fact that obtaining ownership may be problematic when determining whether the project is consistent with the public interest and whether it can be implemented within the permit duration. The exception is confusing because the ALJ did not state that the District did not consider how the City would obtain ownership or control of the areas needed to implement the permit. Rather, the ALJ finds that the fact that obtaining ownership or control may be problematic “is not a reason to automatically deny the City’s proposed CUP.” Ownership or legal control is not listed among the reasons for denial under Rule 40C- 2.301(5), F.A.C., and Section 9.4, AH. An applicant must be able to implement the permit. Otherwise, the applicant has not demonstrated that it needs the permit. (T:3518-19). The record contains evidence regarding the District's consideration of how the City would obtain ownership or control of the property necessary for the permit. (T:161-62, 2420-42, 2763, 3080-81, 3466-67, 3517-19). 83 Petitioners’ Exception No. 83 Petitioners take exception.to FOF 244 for the reasons set forth in their exceptions to COLs 277 through 279 (Exception No. 90), which have been ruled on elsewhere. Rather than set forth a proper legal basis for this exception, Petitioners argue that the finding is “ill-conceived.” Although the Governing Board need not provide a ruling (Section 120.57(1)(k), F.S.), the exception is rejected forthe reasons below. FOF 244 states: Petitioners argue that the proposed Area IV Wellfield is too expensive and that the expense should be a factor in deciding whether it is in the public interest. But cost to the City is not a factor in determining whether to issue the CUP proposed in this case. Statutes and rules cited by Petitioners on this point do not apply to this CUP determination. See Conclusions of Law 277-279, infra. As the ALJ pointed out, Petitioners argued at trial that the cost of the wellfield should be considered by the District when determining whether a consumptive use is consistent with the public interest. The Board finds that the ALJ properly rejected that argument for the reasons set forth in the rulings on Petitioners’ Exception No. 90 (to. COLs 277 through 279) and No. 98 (to COLs 301 through 303). Petitioners’ Exception No. 84 Petitioners take exception to FOF 247 on the grounds that it is not supported by competent substantial evidence. For the reasons described below, the exception is rejected. FOF 247 states: In an imprecise way, the time for eminent domain proceedings necessary to gain ownership or control of land for monitoring sites and wetland augmentation (without time for litigation of a contest over the legality and extent of the FEC easement, or for using eminent domain instead) was factored into the time estimated for implementation of the project. With this rough estimate, the evidence was that the project could be expedited and completed in 33 months 84 from issuance of a CUP. It is possible but not probable that the project could be implemented in less than 33 months. It is possible and more probable that it will take longer than 33 months to implement the project. In a worst case scenario, it could take as much as 59 months complete the project. But 33 months is a reasonable, if optimistic, estimate (without time for litigation of the legality and extent of the FEC easement, or for using eminent domain instead). There is competent substantial evidence to support this finding. (7:339-40, 954-7, 2423-5, 2473-7, 2489-90, 2497-8, 2500-1; City Ex. 26). As acknowledged by the ALJ, there is some uncertainty associated with the predictions for the time required to implement the project. The duty of the ALJ is to take all the evidence, sift and weigh it, and reach a conclusion regarding what is established by the preponderance of that evidence. Ultimately, the ALJ concluded that the evidence showed that the project could be implemented in 33 months from issuance of the CUP. The Board may not disturb this finding. | Petitioners’ Exception No. 85 Petitioners take exception to FOFs 250, 251, and 252 on the grounds that there is no competent substantial evidence to support an inference that Petitioners make from these three findings. Petitioners claim that these findings suggest the conclusion that the priority water resource caution area designation “should not be considered during the permitting process.” The exception is confusing, as it is directed to a finding that does not exist.. In any event, the Board has tried to provide rulings where feasible, and the exception is rejected for the reasons described below. FOF 250 states: As part of its water supply planning process, the District designates priority water resource caution areas. A priority water resource caution area is an area where existing and reasonably anticipated sources of water and water conservation efforts may not be adequate to supply waiter for all existing legal uses and 85 anticipated future needs and to sustain the water resources and related natural systems. FOF 251 states: The area surrounding the Area IV Wellfield was designated as a priority water resource caution area in the District's 2003 Water Supply Assessment and 2005 Water Supply Plan based on groundwater modeling prepared by District planning staffing using the ECF and Volusia County Regional Models. FOF 252 states: The fact the Area IV Wellfield is located in a priority water use caution area does not mean a consumptive use permit cannot be issued for this facility. In fact, over one-third of the District is located within a priority water resource caution area, and permits continue to be issued in those areas. Rather, the essence of the designation is the recognition of a concern, based on the regional models, that the proposed consumptive use of water might violate the wetland and lake constraints ~ and that water resources other than fresh groundwater will be needed to supply the expected need for water in the area and in the District over the next 20: years. That does not.mean that no additional groundwater withdrawals should be permitted in a designated area. Rather, it means'that other resources should be developed and used along with whatever remaining additional fresh groundwater can be permitted. It is not-an independent reason, apart from the permitting criteria, to deny the City’s application. This finding is supported by competent substantial evidence. (T:2858-60, 3485-907, 4982-83: City Ex. 537; Pet. Ex. 277). . Petitioners complain that there is no discussion in the Recommended Order about how the priority water resource caution area designation should be considered by the District during the permitting process. Section 373.0361(6), F.S., provides as follows: ...Except as provided in s. 373.223(3) and (5), the [regional water supply] plan may not be used in the review of permits under part fl unless the plan or an applicable portion thereof has been adopted by rule. However, this subsection does not prohibit a water management district from employing the data or other ? Line 20 of page 3487 of the hearing transcript references Section 373.0369, F.S. That statute does not exist. The citation should be to Section 373.0361, F.S. 3 Sections 373.223(3) and (5), F.S., are not applicable in this case. (T:3488). 86 information used to establish the plan in reviewing permits under part Il, nor does it limit the authority of the depariment or governing board under part Il. The District's water supply plan addresses permitting requirements and reiterates the constraints imposed by statute on its use in the District’s review of CUP applications. (City Ex. 537 at 75-76 [marked as 90-91]). The water supply plan has not been adopted by rule. (T:3498-99). To the extent Petitioners are asking the Board to make additional findings of fact, it is prohibited from doing so. Section 120.57, F.S.; Fla. Power & Light, 693 So.2d at 1026-27. Petitioners’ Exception No. 86 Petitioners take exception to FOF 253 without stating a legal basis for the exception and, therefore, the Board need not rule on it. Section 120.57(1)(k), F.S FOF 253 states: Petitioners contend that the proposed CUP for Area IV includes an impermissible modification of the existing CUP for Areas II and !Il because "Other Condition" 5 limits average annual withdrawals from the Area Il, Ill, and.IV Wellfields, combined, to 5.79 mgd in 2009 and 6.01 mgd in 2010. (As indicated, the limitations would have to be reduced to no more than 5.2 mgd based on the more reasonable projected need.) However, the City's current CUP for the Area II and lll Wellfields expires. in February 2008, which is before the Area IV Wellfield would become operational, so that "Other Condition” 5 will have no practical effect on the existing CUP for Areas II and Ill. In essence, "Other Condition" 5 serves to advise the City that it should not view the allocation for the Area IV) Wellffield i in addition to the City's existing allocations for the Area 'Il.and Area III Wellfields and that any renewal of the existing CUP for Areas Il and Ill will have to take the Area IV allocation into account. Petitioners’ exception contends that: [t]o the extent that Paragraph 253 of the Recommended Order purports to approve Other Condition 5 of the revised TSR (although with lower limitations), such action exceeds the ALJ's authority in this proceeding. 87 This finding is supported by competent substantial evidence. (T:354-55, 2739-41; City Ex. 201, 291). Moreover, the Board concurs that “Other Condition 5” does not constitute a modification of the City’s current CUP for Areas fl and III. Petitioners’ Exception No. 87 Petitioners take exception to FOFs 256 and 257 on the grounds that the sentence “Petitioners did not prove those allegations’ in FOF 257 is not based on competent substantial evidence. For the reasons described below, the exception is rejected. FOF 256 states: As found, Miami Corporation owns property immediately adjacent to the proposed Area IV Wellfield, and Ms. Clark owns property a little more than a mile away. Both alleged and attempted to prove that SAS drawdown from the proposed CUP would degrade wetlands on their property and interfere with their legal use of groundwater, and that saline intrusion from the proposed CUP wouid degrade the water quality of the UFAS resource which they use for potable water. There is competent substantial evidence to support this finding. (Clark 12/05 at 22, 33, 53, 78; Pet. Ex 170, 198, and 199; City Ex. 39). FOF 257 states: As found, Petitioners did not prove those allegations; however, the evidence was that both Petitioners have substantial interests (the quality of water in the aquifer from which their wells withdraw water and wetlands on their property) that would be affected by the proposed CUP at least to some extent. (Emphasis added.) There is competent substantial evidence to support this finding; that is, there was evidence for the ALJ to conclude that the consumptive use would not (a) cause drawdown of the surficial aquifer such that wetlands on Petitioners’ property would be degraded, (b) interfere with Petitioners’ legal use of groundwater, and (c) degrade the water quality of the upper Floridan aquifer on Petitioners’ property. (T:2746, 2754-55, 2758-61, 3066- 88 69, 3070; City Ex. 153B, 169, 291). In support of their exception, Petitioners argue that they did prove the allegations in FOF 256 “for all the reasons set forth in Petitioners’ Proposed Recommended Order.” First, in ruling on exceptions, the Board is not obligated to comb through the Proposed Recommended Order to find support for Petitioners’ exception. Second, by referring to the entire Proposed Recommended Order, Petitioners are clearly rearguing their case. Much of the administrative hearing process focused on the issues in FOF 256. In any adversarial proceeding, conflicting evidence will be presented. The duty of the ALJ is to take all the evidence, sift and weigh it, and reach a conclusion regarding what is established by the preponderance of that evidence. Petitioners’ Exception No. 88 Petitioners take exception to COL 264 on the grounds that the “omission in Conclusion of Law 264 of the reference to ‘economic’ utilization is material and significant given the issues in this case.” Petitioners point out that under Section 10.3(a), A.H., the Board is to determine whether a proposed water use is “in such quantity as is necessary for economic and efficient utilization.” While the Board agrees with Petitioners’ statement of the rule, the Board disagrees that the omission is material and significant under the facts of this case. The exception is denied, and the Board declines to modify or reject this conciusion of law for the reasons set forth below. COL 264 states: Under Rule 40C-2.301(4)(a) and A.H. Section 10.3(a), the District considers: (1) whether there has been a demonstration of need for the water requested; and (2) whether the requested amount of water will be used efficiently: Section 40C-2.301(4)(a), F.A.C., provides that a proposed use of water “must be in such quantity as is necessary for economic and efficient utilization.” Similarly, the 89 Applicant’s Handbook under Section 10.3, A.H., states that for a use to be considered reasonable-beneficial: (a) the use must be in such quantity as is necessary for economic and efficient utilization. The quantity applied for must be within acceptable standards for the designated use (see Section 12.0 for standards used in evaluation of need/allocation). (Emphasis added.) Section 10.3(a), A.H. The ALJ correctly set forth this criterion both in COL 262 and in the heading directly above this COL. Sections 12.2-12.2.4, A.H., in turn set forth how - compliance with this criterion may be demonstrated with regard:to public supply type uses. For these types of uses, the District looks to the amount of water requested for each person in a projected population in determining whether the water will be used efficiently. (T: 3470-71; FOF 41). The quantity of water that is being requested for the demonstrated need has to be an amount that would supply the needs of what is being requested if it was used efficiently. (T:3468-69). As discussed further in the Board's rulings on Petitioners’ Exception No. 90 below, the ALJ’s interpretation of section 10.3(a), A.H., is consistent with the interpretation by the drafters of the term “reasonable-beneficial use,” which states that economic efficiency is directed at whether the quantity of water requested is used in the most efficient manner with respect fo the use itself and is not directed at the pecuniary costs to the user. Frank E. Maloney, et al., A Model Water Code at 170-71, Gainesville: University of Florida Press (1972); F. Maloney, et al., Florida’s “Reasonable-Beneficial” Water Use Standard: Have East and West Met?, 3 Fila. L. Rev. 253, 269 (Winter 1979) (the term does not require a water use to be the most economical use).* “The Model Water Code was the archetype of Chapter 373 and the authors drafted the statutory language. F. Maloney, 31 Fla. L, Rev. at 275; R. Ausness, The Influence of the Mode! Water Code On Water Resources Management In Florida, 3 J. of Land Use & Envtl, L. 1, 18 (1987); R. Ausness, Water 90 The District does not consider costs or economic feasibility under Rule 40C- 2.301(4)(a) or Section 10.3(a), A.H. Rather, economic feasibility is addressed in the reasonable-beneficial criterion under certain District rules regarding whether water conservation measures (Rule 40C-2.301(4)(e), F.A.C.), reclaimed water use (40C- 2:301 (4)(f), FAC), and lowest acceptable quality water source (40C-2.301(4)(g), F.A.C.) are not economically feasible. Outside the context of these specific rules, costs are not a consideration under current District permitting requirements. There is competent substantial. evidence in the record to support this conclusion of law. (T: 3468-71). Petitioners’ Exception No. 89 Petitioners take exception to COL 272 on the grounds that it is “contrary to applicable law, contrary to sound policy, and contrary to common sense.” They contend that the Recommended Order fails to explain why the water that the City could buy from Cocoa under contract “should not be counted as part of the ‘Applicant's requested quantity’ while the water the City of Titusville pumps from its &xisting wellfields should be thusly counted.” In essence, Petitioners are arguing that the Board in its determination of the City’s need for water should take into account in the same manner the amount of water available to the City (a) from its existing wellfields and (b) under its contract with the City of Cocoa. By not doing so, Petitioners argue the Board would be taking the water available to the City under its contract with Cocoa “out of the pool for other potential users.” The exception is denied for the reasons set forth below. COL 272 states: Rights Legislation in The East: A Program For Reform, 24 William & Mary L. Rev. 547, 557 n..58 (1983); Southwest Florida Water Management Dist. v. Charlotte County, 774 So. 2d 903 (Fla. 2d DCA 2001) (the court used the Mode! Water Code to interpret Part Il of Chapter 373). 91 Contrary to Petitioners’ contention, the District's rules do not require the City to meet either its existing or future demands from water supplied by the City of Cocoa before it can develop its own.supplemental source. There is nothing in A.H. Section 12:2 implying that the amount of water the City can buy from Cocoa under contract, even the take-or-pay portion of the contract, should be counted as part of "the applicant's requested quantity” to-be compared to the amount of water required for reasonable-beneficial uses. Assuming that the other permitting criteria are met, the City may receive a CUP to supply its reasonabie-beneficial uses without reference to Cocoa water. If such a CUP is granted to the City of Titusville, Cocoa’s reasonable-beneficial use would decline accordingly. Given the factual findings in this case, the Board disagrees with Petitioners for several related reasons. First, under the District’s rules, the fact that the City of Cocoa obtained an allocation based on plans to provide water to the City of Titusville does not categorically preclude the City of Titusville from developing its own supply or require it to use existing third-party sources. (T:2696). Second, based on the evidence and the ALJ’s finding in FOF 63, it can be reasonably inferred that the ALJ considers water from Cocoa to not be guaranteed and that the amount of water provided to the City could decline further. Under the ALu’s interpretation of the contract, the City of Titusville can opt out of the contract before water from the Area IV Wellfield becomes available for use simply by providing timely notice of its intent to terminate the contract. Third, in this instance, the entity withdrawing the water addressed in the City’s bulk water contract is the City of Cocoa, not the City of Titusville. Issuance of a consumptive use permit for the Area IV Wellfield could affect the need demonstrated by the City of Cocoa and the Board could modify the City of Cocoa’s allocation. (T:3510-11). ‘This could be done, for example, as a result of a five-year compliance review. (T:3528). Finally, Petitioners’ assertion that it is unsound policy to take water available to the City under its contract with Cocoa “out of the pool for other potential users, but fail to take. it into consideration 92 as a portion of Titusville’s available supply” is based on an incorrect factual premise. As the ALJ explained in COL 273, the District did take the Cocoa water into account in “Other Condition” 5 of the second amended TSR (City Ex. 291), by reducing the City of Titusville’s combined allocation from Areas II, Ill, and IV by an amount equivalent to the quantity provided by Cocoa. Notably, Petitioners did not take exception to COL 273. Petitioners rely on the case of West Coast Regional Water Authority v. Southwest Florida Water Management District (DOAH Case Nos. 84-2653 — 2654; Recommended Order 7/26/85, Final Order 9/4/85) to support their position. However, in that case the ALJ made very different factual findings which in tum led to different legal conclusions. The West Coast Regional Water Authority case involved two CUP applications by two separate entities, an individual and a regional water supply authority, to provide water to Pasco County. At the start of that case, Pasco County . already had three sources of public water supply: a weilfield owned by one of the applicants, their own 13 permitted wells, and a contractual arrangement with Pinellas County to supply up to 10 mgd on demand. The parties admitted that existing sources of water were sufficient in raw quantity to satisfy Pasco County's demands through 1990. The ALJ found that (a) the amount of water available to Pasco County in 1985 from these existing sources was 21.5 mgd on an annual average basis and exceeded the County's need, based upon per capita use and estimates of population growth for that year, by 10.2 mgd °and (b) that supply from these sources would continue to exceed the County's average annual water demand until 1995. Moreover, the water supply contract between Pinellas and Pasco counties was not placed into evidence and no evidence was presented as to whether Pasco County was either able to or desired to ° This amounts to a redundancy or reserve capacity of 90%. 93 eliminate or change its contract with Pinellas County. A close reading of the entire paragraph quoted by Petitioners shows that the hearing officer presumed that SWFWNWD considered the contractual arrangement when it issued the CUP covering the source of that water because the contract was not placed into evidence and no other evidence was presented that Pasco County could or wanted to terminate or modify the contract.® Therefore, the CUP applicants in that case failed to demonstrate need for additional water. By stark contrast, in the instant case, the ALJ found in'FOFs 61 and 62 that the City needed additional water beyond what Areas II and III could provide, and the City presented evidence that its contract with Cocoa can be terminated. (FOF 61-62; City Ex. 313). Petitioners’ Exception No. 90 Petitioners take exception to COLs 277, 278, and 279 because they believe that the District should consider costs to the City and its customers when determining whether the consumptive use is economic and efficient and consistent with the public interest. The Governing Board need not provide a ruling because Petitioners fail to take exception in conformance with Section 120.57(1)(k), F.S. Nevertheless, for the reasons below, the Board rejects the exception. — 5 The paragraph states: It is further argued that Pasco County desires to reduce its reliance on the Pinellas County contract and gain control of its own destiny with respect to adequate and affordable water supplies. It is urged that the concept of “need” includes more than'raw quantity and that environmental and-economic considerations must be included. However, there is no evidence to demonstrate that the Pinellas County supply is either inadequate, undependable, uneconomical or presents adverse.environmental.effects:.. It must be presumed that the District took into consideration the 10 mad entitlement of water to Pasco County when it issued.the CUP covering the source of that water [to Pinellas County]. There is no competent . substantial evidence that the Board of County Commissioners of Pasco County intends to formally rescind or eliminate all or any portion of this contractual arrangement with Pinellas County. Should the District ignore this source of water to Pasco County.and, at the same time, allow it to be preempted from other uses? To do so would be to disregard its responsibility to provide for the “management” of water resources and the “conservation” and “proper utilization” of groundwater. (Emphasis added). West Coast Regional Water Authority at COL 37. 94 Because this exception is so similar to Petitioners’ exception number 98, some context may be helpful. To demonstrate compliance with consumptive use permitting criteria, an applicant must show that a proposed use of water (1) is a reasonable- beneficial use, (2) will not interfere with presently existing legal users, and (3) is consistent with the public interest. Section 373.223, F.S. In this exception, Petitioners object to the portion of the Recommended Order that addresses the first item — reasonable-beneficial use. To be considered reasonable-beneficial, a use must be in such quantity as is necessary for economic and efficient utilization. Rule 40C- 2.301(4)(a), F.A.C. As acknowledged by the ALJ in COL 277, Petitioners believe that cost to the City and its consumers should be part of the analysis for compliance with Rule 40C-2.301(4)(a), F.A.C. COL 277 states: Petitioners contend that the City's proposed use of water is. not economic and efficient because there are ways to obtain the water that would be less expensive for the City.and its customers. Regardiess whether Petitioners’ contention is factually correct, the cost-to the City and its customers is not relevant to a determination whether a use is economic and efficient under A.H. 12.2.2. COL 278, which is lengthy, states in part: The legislative history of the Florida Water Resources Act demonstrates the Legistature.did not intend the type of economic comparisons urged. by the Petitioners as a component of consumptive use permitting. ... The commentary does not suggest any legislative intent that the reasonable-beneficial test requires applicants to demonstrate they are pursuing the lowest cost option for the providing water. COL 279 states in part: When the Legislature specifically intends an. administrative agency to perform the type of comparative economic analysis urged by the Petitioners, it explicitly defines such a requirement in the legislation. ...'By contrast, no such specific requirement of a comparative economic analysis exists in the statutory or regulatory criteria for the issuance of a consumptive use permit by a water 95 management district; thus, there is no statutory basis for requiring the City to perform any comparative economic analysis as a prerequisite to obtaining the requested CUP, and the City has provided reasonable assurance that the allocations demonstrated to be needed will be used economically and efficiently. The Board finds that the ALJ’s conclusions are proper and that there is competent substantial evidence to support the conclusions. (T:3467-68, 3480, 3483-84, 3525-26; City Ex. 291). Petitioners’ Exception No. 91 Petitioners take exception to a portion of COL 280 on the grounds that it is “in fact a Finding of Fact not supported by competent substantial evidence.” The exception is denied for the reasons set forth below. . COL 280 states: In compliance with Rule 40C-2.301(4)(b), and A.H. Section 10.3(b), the City has provided reasonable assurance that the proposed use is for a purpose that is reasonable and consistent with the public.interest. The requested allocation of 2.75 mgd of groundwater is largely for household and ‘commercial uses that are considered to be purposes that are both reasonable’and consistent with the public interest. The possible use of up to 0.1 8- mgd of groundwater for wetland hydration and aquifer recharge is both reasonable and consistent with the public interest because this use of water serves to avoid impacts to wetlands that may occur from the development of the proposed Floridan welifield. This use of surficial aquifer groundwater makes it possible to withdraw higher quality groundwater from the Floridan aquifer for household and commercial uses. The portion to which Petitioners take exception is italicized in the text above. The Board finds that this portion of the COL is not a finding of fact, as Petitioners contend, but is an “ultimate fact” lying in the realm of policy opinion rather than ordinary fact. Berry, 530 So.2d at 4022; Baptist Hosp., Inc. v. State Dep’t of Health & Rehab. Serv., 500 So.2d 620, 623 (Fla. 18‘ DCA 1986). The distinction between ordinary facts and ultimate facts has been described as: 96 . ...a distinction should be drawn between historical, objective, or. “hard” facts, on the one hand, and ultimate factual determinations, on the other. The former are susceptible to proof by conventional methods. With regard to this kind of fact, the evidence may be hotly contested and highly in conflict, but in the end, the light was either red, yellow, or green. An ultimate factual determination, in contrast, is often a conclusion derived by reasoning from objective facts; it frequently involves the application of a legal principle or rule to hard historical facts: e.g. the driver failed to use reasonable care under the circumstances and therefore was negligent; and it may be infused with policy considerations. Reaching an ultimate factual finding requires that judgment calls be made which are unlike those that attend the pure fact finding functions of weighing evidence and choosing between conflicting but permissible views of reality. Syslogic Tech. Serv., Inc. v. Southwest Fia. Water Mamt..Dist., 26 F.A.L.R. 1364, 1383 (SFWMD), dismissed, 819 So.2d.771 (Fla. 2d DCA 2002). The Sierra Club v. Hines Interest Ltd. Partnership, DOAH No. 99-1907 (SJRWMD,2000) (finding that it is within the Board’s purview to make a determination of whether the public.interest test has been met based upon the findings of fact determined by,the ALJ). The remainder of Petitioners’ exception is.an attempt to have the. Board reweigh the evidence which it may not, and declines to, do. The COL is supported by competent substantial evidence. The ALJ found in FOF 165 that the City’s March 2006 MODLFOW model was the best model in evidence for assessing drawdown impacts and in FOFs 178 and 186 found that under the City's modeling a withdrawal of 2.75 mgd would not cause an environmental impact. if drawdown is of the magnitude predicted by the City’s (SDI's) March 2006 MODFLOW model, unacceptable environmental impacts from drawdown would not be anticipated. (T:3067-68; City Ex. 153B, 291: FOF 178). Since the City has given reasonable assurance that there will not be environmental harm from drawdown, the proposed permit does not propose ; mitigation. (T: 3087; FOF 182). If unanticipated harm is detected, “Other Condition” 24 97 of the proposed permit requires the City to implement an avoidance and minimization plan to rehydrate the wetlands and restore the water levels to normal levels and natural hydroperiods by augmenting the water in the affected wetlands with water pumped from ~ SAS wells and piped to affected wetlands. (T:3087; City Ex. 291; FOF 182). Based on the predicted drawdown, the City (SDI) estimated the quantity of water needed for implementation of the avoidance and minimization plan to be 0.18 mgd. (T: 1039, 1050- 51, 1090-91; City Ex. 98, 106, 112, 115; FOF 184). In addition, the City could, on its own, change its pumping schedules. (T: 3088-89; FOF 182). If an impacted wetland is near a particular well, the City could. reduce or shut off water withdrawals from that well and thereby restore water levels in the wetland. (T: 3088-80: FOF 182). Petitioners’ Exception No. 92 Petitioners take exception to COL 281 without stating a legal basis for the exception and, therefore, the Board need not rule on it. Section 420.57(1)(k), F.S. Nevertheless, the exception is rejected for the: reasons set forth below. COL 281 states: In compliance with Rule 40C-2.301(4)(c), and'A.H. Section 10.3(c), the City has provided reasonable assurance that the sources of water are capable of producing the requested amounts of water. First, the long-term constant rate pump tests ~ performed as part of the hydrogeologic investigation of the Area IV Wellfield produced evidence that the freshwater lens in the Upper Floridan-aquifer can be utilized for the quantity of water the City requested. During these tests, water quality did not degrade even at pumping rates that exceeded what would be approved as part of the proposed permit. Second, the City’s MODFLOW simulation provided reasonable assurance that the requéstéd allocations could be provided without excessive drawdown. Third, the City’s SEAWAT simulations provided reasonable assurance that the requested allocations could be provided without excessive changes to water quality and specifically chlorides. A fortiori reasonable assurance for UFAS withdrawals of 0.75 mgd was provided. As to the surficial aquifer system, the aquifer performance tests performed providéd reasonable assurance that this aquifer is capable of producing the 0.18 mgd of water via the surficial aquifer extraction wells for any needed wetland hydration. 98 Petitioners. take exception to this COL only by adopting their exceptions to FOFs 67, 68, 122, 151-153, 160-162, 200, 208, 210 and 228-230 and by extensively rearguing the evidence. Essentially, Petitioners are asking the Board to reconsider their earlier arguments regarding findings of fact (about whether the Area IV Wellfield is capable of producing the requested amount of water), but without any cites to the record to support their requested changes to those findings of fact. The Board disagrees with Petitioners’ statement that adoption “of this finding would create a precedent that applicants can rely upon water quality test from APTs run for only a few days to determine whether the proposed source of water is capable of producing the requested amounts of water.” In this COL, the ALJ refers to three separate evidentiary sources when concluding that the source (the UFAS at the Area IV Wellfield) is capable of producing the requested amount of water. The first evidentiary source is the 4-day pump tests (which the ALJ, in a harmless error, mis-described as ‘long-term’ pump.tests).. The second and third evidentiary sources were the City’s MODFLOW model (City Ex. 288) and the City’s SEAWAT model (City Ex. 293). Based on the ALu's findings of fact, which are supported by competent substantial evidence, the Board accents this conclusion of law. Petitioners’ Exception No. 93 Petitioners take exception to COLs 282, 283, 284, 285, and 286 on the grounds that there is no competent substantial evidence to support the conclusion that the City provided reasonable assurance that the environmental or economic harm of the consumptive use is reduced to an acceptable amount. To explain their exception, Petitioners refer to “all of the reasons set forth in Petitioners’ exceptions to Findings of Fact 67-231.” However, of those 164 findings, Petitioners took exception to only 99 of 99 them. With respect to the findings to which Petitioners failed to take exception’, those objections have been waived. Environmental Coalition of Florida, Inc., 586 So.2d at 1213. For the remaining FOFs, the Board has ruled elsewhere in this Final Order that those findings are based on competent substantial evidence. The Board finds that COLs 282, 283, 284, 285, and 286 are proper. Petitioners’ Exception No. 94 Petitioners take exception to COL 289 only on the grounds that it “contains several mischaracterized Findings of Fact.” The exception is denied for the reasons set forth below. -COL 289 states: In compliance with Florida Administrative Code Rule 40C-2.301(4)(g) and Section 10.3(g), A.H., the City has provided‘reasonable assurance that the lowest acceptable quality water source is being utilized for the proposed use. The majority of water use under the proposed permit will be for direct human consumption or food preparation. Section 10.3(g), A.H., does not require the use of lower quality sources for direct human consumption or human food preparation unless higher quality sources are unavailable to meet projected demands. See also Marion County v. Greene and SJRWMD, DOAH Case: No. 06-2464, — SJRWMD Final Order Mar. 13, 2007, at www.doah.state.fl.us, 2007 Fla. Div. Adm. Hear. LEXIS 17 (DOAH Jan. 9, 2007). For uses other than human-consumption and food preparation, the City is required to use the lowest acceptable quality water source unléss it demonstrates that the use of a lower quality water source would not be economically, environmentally, or technologically feasible. See § 10.3(g), A-H. The applicant is proposing to use the lowest ‘acceptable quality water source available, reclaimed water, for most of these uses and has aggressively implemented reuse of reclaimed water, and continues to expand its reuse system. In addition to reclaimed water, District staff evaluated whether additional lower quality sources are available and feasible for use within the City's service area. It is not feasible to utilize additional lower quality sources of water for the duration of the proposed permit. If more use:of lower quality sources of water becomes available, the allocation can be adjusted if necessary during the permit renewal process. ’ Petitioners did not take exception to FOFs'71-76, 78-80, 82, 84, 85, 93-96, 103, 107, 108, 111, 112, 115, 117-121, 123, 128-131, 137, 140, 141, 144, 146, 164, 166, 168-177, 183, 184, 188, 190-192, 196, 198, 199, 201, 203, 204, 207, 209, or 225-227. 100 In this exception, Petitioners again reargue their case and essentially are requesting the Board to reweigh and interpret evidence. The underlying “findings of fact” supporting this COL are supported by competent substantial evidence. (T: 2745-46, 3481-82; City Ex. 291 at 13). Moreover, Petitioners fail to cite to the record to support their argument that “ready alternatives of lower quality are available to the City,” including Taylor Creek Reservoir Project and a Reverse Osmosis Project. In fact, the evidence in the record shows that these projects are not available at this time and the ALJ's finding in FOF 40, to which Petitioners did not take exception, reflects that he credited this evidence. (T:124-25, 143-45 2432-39, 2855-58, 640-42). Petitioners’ Exception No. 95 Petitioners take exception to COL 290 only by adopting their exceptions to FOFs 200, 208, 210 and COL 281 and by referencing their exceptions to FOFs 67-231. The Board notes that Petitioners did not take exception to all the fi indings between FOFs 67 and 231. Therefore, they have not stated a legal basis for this exception and the Board need not rule on it. Section 120.57(1)(k), F.S. Nevertheless, the exception is rejected for the reasons set forth below. COL 290 states: ; in compliance with Florida Administrative Code Rule 40C-2.301(4)(h) and Section 10.3(h), A.H., the City has provided-reasonable assurance ‘that the proposed CUP for the Area VV Wellfield will not cause significant saline water intrusion or further aggravate currently existing saline water intrusion problems. In ‘compliance with Florida Administrative Code Rule 40C-2.301(5)(a)1. and Section 9:4:2, A.H., the City provided reasonable assurance that the proposed use will not induce” significant saline water intrusion to such an extent as to be inconsistent with the public interest. A fortiori, reasonable assurance for UFAS withdrawals of 0.75 mgd was provided. 101 In this exception, Petitioners essentially are requesting the Board to reweigh evidence regarding the adequacy of the City’s modeling and to reconsider its rulings on Petitioners’ exceptions to the ALJ’s findings of fact. The Board declines to do so. Based on the ALJ’s findings of fact, which are supported by competent substantial evidence, the Board accepts this conclusion of law. Petitioners’ Exception No. 96 Petitioners’ exception to COL 291 states only: For all of the reasons set forth in Petitioners’ exceptions to Finding of Fact 67- 231, and to the extent, that this Conclusion of Law finds certain facts, Petitioners except. Petitioners have not stated a legal basis for this exception and the exception fails to conform to section 120,57(1)(k), F.S. Without a more specific statement for the basis of this exception, the Board declines to rule on this exception. The Board notes that Petitioners did not, in fact, take exception to each finding of fact between FOFs 67 and 231. All of the findings of fact to which Petitioners took exception and that they refer to in this exception are supported by competent substantial evidence as explained in the Board’s rulings on those exceptions. . Petitioners’ Exception No. 97 Petitioners’ exception to COL 293 states only: For all of the reasons set. forth in Petitioners’ exceptions to Finding of Fact 67- 231, and to the extent, that this Conclusion of Law finds certain facts, Petitioners except. ; ; Petitioners have not stated a legal basis for this exception and the exception fails to conform to section 120.57(1)(k), F.S. Without a more specific statement for the basis of . this exception, the Board.declines to rule on this exception. The Board notes that 402 Petitioners did not, in fact, take exception to each finding of fact between FOFs 67 and 231. All of the findings of fact to which Petitioners took exception and that they refer to in this exception are supported by competent substantial evidence as explained in the Board's rulings on those exceptions. Petitioners’ Exception No. 98 Petitioners take exception to COLs 301, 302, and 303 because they believe that the District should consider the economic and financial ramifications of the Area IV Wellfield and its alternatives. Because Petitioners. fail to take exception in conformance with Section 120.57(1)(k), F.S., the Board need not provide.a ruling. Nevertheless, for the reasons below, the Board rejects the exception. . Because this exception is so similar to Petitioners’ exception number 90, some context may be helpful. To demonstrate compliance with consumptive use permitting criteria, ‘an applicant must show that a proposed use of water (1 ) isa reasonable- beneficial use, (2) will not interfere with presently existing legal users, and (3).is consistent with the public interest. Section 373,223, F.S. In this exception, Petitioners object to the portion of the Recommended Order that addresses the third item —. consistency with the public interest. Rule 40C-2.301(2)(c), F.A.C. The public interest analysis contains some overlap with other consumptive use permitting criteria. The District considers whether the use will adversely affect water resources, qualifies as a reasonabie-beneficial use, and triggers any of the reasons for denial of the permit (except for reasons for denial that relate to interference with existing legal uses; Section 9.2.3, A.H.). (City Ex. 291). As acknowledged by the ALJ in COL 300, Petitioners 103 believe that cost to the City and its consumers and the duration of the permit should be part of the analysis for compliance with Rule 40C-2.301(2)(c), F.A.C. COL 301 states: The District does not consider such financial interests when determining whether the proposed use is reasonable and consistent with the public interest. See Osceola County v. SJRWMD and South Brevard Water Auth., DOAH Case No. 91-1779, 1992 Fla. ENV LEXIS 83 (SJRWMD Jun. 10, 1992), 1992 Fla. Div. Adm. Hear. LEXIS 5960 (DOAH Mar, 12, 1992). As‘noted by the District's Governing Board in Osceola County v. SJRWMD, "Cost to the consumer is not a substantive factor considered under District rules i in determinirig whether a proposed water use is reasonable-beneficial or in the public interest, but may be relevant in certain factual instances, ...“such‘as: when:an applicant contends that water conservation measures, water reuse or use of the lowest acceptable uality water source otherwise required are-‘not economically feasible. See paragraphs 40C-2.301 (4) (e) (f), and (g), F.A.C." (Emphasis added). COL 302 states: Thus, there are limited circumstances when the District examines economic feasibility. In Florida Administrative Code Rule 40C-2.301(4)(e), the applicant must establish that all available conservation measures be implemented unless shown not to -be economically, environmentally or ‘technologiéally feasible:An’ Florida Administrative Code Rule 40C-2.301(4)(f), the applicant must use readily available reclaimed water unless shown that it is‘not economically, ~ environmentally or technologically feasible. In Florida Administrative Code Rule 40C-2.301(4)(g), for uses other than human consumption’ ‘and food preparation, the City:is required to use the lowest acceptable quality water source unless it demonstrates that the use of a lower quality water source would not be economically environmentally, or technologically feasible. COL 303 States: Except as noted above, nothing in Chapter 373, and nothing i in a District rule or policy, requires the District to act as a financial supervisor to the applicant. Therefore, the District need not consider the financial investment of the community in the proposed Area IV Wellfield to determine whether the’ proposed use is consistent with the public interest. The Board finds that the ALJ’s three conclusions are proper and that there is competent substantial evidence to support the conclusions. (T:3467-68, 3480, 3483-84, 3525-26; City Ex. 291). 104 Petitioners’ Exception No. 99 Petitioners’ exception to COLs 304 through 312 states only: For all of the reasons set forth in Petitioners’ exceptions to FOF 67-231, there is no competent substantial evidence that the City has provided reasonable assurances recommended to be found by Conclusions of Law 304-312. Petitioners have not stated a legal basis for this exception and the exception fails.to conform to section 120.57(4\(k), F.S. Without a more specific statement for the basis of this exception, the Board declines to rule on this exception...The Board notes that Petitioners did: not,-in. fact, take -exception.to.each finding of fact between. FOFs.67.and 231. All of the findings of fact to which Petitioners took exception and that they. refer to: in this exception are supported by competent substantial evidence as explained in the Board's rulings on those exceptions. Petitioners’. Exception:No..100 Petitioners take exception to COLs 318, 319, 320, 321, 322, 323, 324, and 325, all of which.address Petitioners’ assertion that the City doesnot have ownership or legal control of the property that will be needed to implement the permit. Because Petitioners fail to take exception in conformance with Section 120.57(1 Xk), E.S.,the Board need not provide a ruling. Nevertheless, for the. reasons below, the Board rejects the exception. 7 . a In COLs 318 through 325, the ALJ sets forth his conclusions regarding whether the City must demonstrate that.it owns or has legal.access to the wellfield, monitoring sites, and,augmentation sites before it.can obtain a consumptive use permit. He concludes that “no permitting criterion in Chapter 373, District rule, or District policy requires the City to have ownership or legal. control.” The Board concurs with his 105 conclusions and finds that they are based on competent substantial evidence. (T:3466, 3517-19). Petitioners also filed an exception to FOFs 240, 241, and 242 (Exception No. 81), which were ruled on elsewhere. Petitioners’ Exception No. 101 Petitioners take exception to COL 331 because they believe that-the City has not provided reasonable assurance that the Area IV Wellfield will be operational before the permit expires on Decembér 31; 2010. They refer also to their-exception to FOF 247 (Exception No. 84), which was ruled upon elsewhere. For the reasons'below, the Board partly grants the exception and partly rejects the exception. COL 331 is modified as follows: Petitioners take the position that the proposed CUP should:be denied if the City cannot provide reasonable assurance that the Area IV Wellfield will be operational before its expiration at the end of 2010, taking into account the time for éminent domain and for litigation over the legality and extent of the City's FEC easement. There are two three reasons why the proposed CUP’ should not be denied on that ground. First, ‘tis likely that the City-will apply to renew Both the existing A ep Cup V--Sécend, it would be bad policy for CUPs to be denied on 1 the basis of delay resulting from litigation by an opponent of the proposed: CUP: Second Fhird, as found, given the reasonable 33-month estimate for implementation (without time for litigation of a contest over the legality and extent of the FEC easement), the CUP would have to be issued by March 2008 to be completed before expiration and probably would be in operation for approximately six months before expiration. / Petitioners state that the City’s intent to apply for a permit renewal should not be a factor in determining whether the wellfield will be operational before the permit expires. The Board agrees. As the statutory agency head that grants or denies consumptive use permits, the Board has the authority to reject or modify this conclusion of law. Section 120.57(1)(I), F.S. The ability to implement the permit is related to the 106 demonstration of need. (T:3519). Whether the findings establish a “need” for a proposed water use is ultimately a legal conclusion for the agency head. Osceola County v. St. Johns River Water Mgmt. Dist., DOAH 91-1 048.(SJRWMD 1992). There is competent substantial evidence in the record for the ALJ to infer that the City is likely to request a permit renewal. (T:543-4, 2825). However, in the Board’s view, to demonstrate need for a consumptive use, an applicant must be able to implement the permit independently of any plan to seek renewal. The Board finds that its conclusion is more reasonable than the ALJ’s conclusion. This modification does not change the outcome of the proceeding. The Board concurs with the remainder of the COL 331 (as modified), which is based on competent substantial evidence. (T:338-40, 953-58, 972-75, 2423-26, 2473- 28, 2489-90, 2500-01; City Ex. 26). - Petitioners’ Exception No. 102 Petitioners take exception to COL 333 because they believe that the permit duration i is “illegal” under District rules. Although the Governing Board need not provide a ruling because Petitioners fail to take exception in conformance with Section 120.57(1)(k), F.S., the exception is rejected for the reasons below. COL 333 states: . - Petitioners argued in their PRO that the short duration of the proposed CUP is contrary to A.H. Section 6.5.2(a), which provides: When an applicant fails to provide reasonable assurance to support a :20 year duration or when the applicant does not request a duration of 20 years, a consumptive use permit shail have a duration.of 10 years unless the Governing Board determines that a different permit duration is warranted based on a consideration and.balancing of the factors listed.in section 6.5.3. However, in no case shail the duration of an individual permit exceed the life of the activity for which the water is used. . 107 Petitioners did not raise this issue in their Amended Petitions or in the Joint Pre-hearing Stipulation, and it is not proper for them to raise it for the first time in their PRO. See Woodholly Associates v. Dept. of Natural Resources, 451 So. 2d 1002, 1004 (Fla. 1st DCA 1984) (it was too late in proposed order to raise a new issue which was not raised in the pleadings or the pretrial stipulation). Even if properly raised, the issue does not have merit. The ALJ made two conclusions in the above COL. First, although Petitioners debated certain aspects of the permit duration, Petitioners did not raise this particular * ‘legal duration” topic until after the administrative hearing. The ALJ concluded that the i issue was not properly raised, and the Board lacks jurisdiction to disturb evidentiary rulings. Barfield, 805 So.2d at 1012 (the agency lacked jurisdiction to overturn an ALJ's © evidentiary ruling), Lane, DOAH 05-1609 (DEP 2007) (the agency has no substantive jurisdiction over procedural issues, such as whether an issue was properly raised, and over an ALJ’s evidentiary rulings). | Second, the ALJ finds that the “illegal duration” argument does not have merit. The Board agrees. As the ALJ found in COLs 334, 335, and 336 (to which Petitioners make no exception), the District can issue permits for durations less than 10 years ina number of situations, including those where the applicant does not provide reasonable assurance of meeting permitting criteria beyond the permit duration. Petitioners Exception No. 103 Petitioners take exception to COL 338 to the extent that it implies that Petitioners’ standing was predicated on Section 403.412(5), FS. They do not object to the conclusion itself, which is that Petitioners have Standing in this case. The Governing Board need not provide a ruling because Pétitioners fail to take exception in conformance with Section 120.57(1)(k), F.S. Nevertheless, the exception is rejected 108 because, in the Board’s view, COL 338 does not find that Petitioners’ standing is based on Section 403.412(5), F.S. It appears that the ALJ included the language of Section 403.412(5), F.S., because it codifies the substantial interest test of Section 120.569, F.S., which is applicable to this proceeding. See L. Sellers &C. Sellers, “Intervene” Means “Intervene”: The Legislature Revises Citizen Standing Under F.S. § 403.412(5),” 76 Fla. B. J. 63, 65 (Nov. 2002). Although the Board has the authority to modify this conclusion of law, the Board declines because no modification is necessary. Billie v. St. Johns River Water Mgmt. Dist., DOAH 03-1881 (SURWMD 2004) (agency has. substantive jurisdiction to determine standing to initiate a proceeding under Section 120.569, F.S.,-since it is Chapter 373, F.S., that confers standing). RULINGS ON CITY’S EXCEPTIONS City’s Exception.No. 1 The City takes exception to COL:274 on the grounds that the ALJ erroneously interpreted Section 12.2, A.H., to conclude that this section does not allow CUP applicants to build redundancy into their water supply systems and have flexibility to rotate. water use among several different facilities. Based on its exception, the City requests the Board to reject,the ALJ's interpretation of Section 12.2 in COL 274 and to grant the City a CUP for the Area IV Wellfield as provided by the second revised TSR, except fer limiting the combined annual average rate for Areas II, Ill and IV in.“Other Condition” 5 to 5.2 mgd. For the reasons set forth below, the Board grants this exception in part and denies it in part. COL 274 states: The Gity and the District take the position that the District encourages water supply applicants to build redundancy into their water supply systems so they 109 have the flexibility to rotate water use among several different facilities. But there is nothing in the District’s rules about building redundancy, or giving guidance as to how much redundancy should be encouraged. To the contrary, A.H. Section 12.2 is reasonably clear that “the applicant's requested quantity” may not exceed the amount of water required for reasonable beneficial uses, as calculated under A.H. Section 12.2. As found, the need as calculated under that rule for purposes of the pending application does not exceed 0.75 mgd. For the reasons set forth in its ruling on District staffs Exception No. 2 to COL 274, the _ Board agrees with the City that providing redundancy (“reserve capacity’) can be a reasonable-beneficial use under Rule 40C-2.301(4)(a)-(b), F.A.C..and grants the City’s exception to the extent set forth in that ruling. The Board denies for several reasons the portion of the City’s exception that requests the Board to issue a CUP that would allow it to withdraw a maximum of 2.75 mgd annually from the Area IV Wellfield as long as the combined annual withdrawals for public supply from the Area Il, Ill and IV Wellfields do not exceed 5.2 mgd. ¢ First, the City’s requested modification would conflict with the ALw’s findings in FOFs 61 and 62 to which the City did not take exception. In these findings, the ALJ found that: (a) “a reasonable maximum annual average allocation for the proposed Area IV Wellfield would be 0.75 mgd;” (b) “the evidence supports a reduction of the annual average limit from 2.75 mgd to 0.75 mgd;” and (c) “the probable safe and reliable yield” -- of Areas !I and Ill is 4.5 mgd.” All of these findings are supported by competent substantial evidence. Second, the Board disagrees with the City's contention that the only reason why the ALJ recommended a lower allocation was based on his interpretation of Section 12.2, A.H. In its exception, the City argues that “the sole reason stated in the RO upon which the ALJ bases his reduction of the City’s annual average allocation from the Area 110 IV wellfield from 2.75 mgd to 0.75 mgd is the ALJ's mistaken interpretation of District rules regarding redundancy or reserve capacity.” However, to ‘support the requested allocation of 2.75 mgd, the City relied on a population projection method and a per. capita water use rate to calculate water demand, both of which the ALJ rejected as less reasonable than those presented by Petitioners (see FOFs 57 and 58). As a result, the ALJ found the City had a projected demand for.less water (5.2 mgd.v. 6:12 mgd) than it claimed, and this finding in turn affected the recommended allocation. . The City attempts to eliminate these. additional. bases.for the ALJ's recommendation by stating in its exception that it does not take exception to the ALJ's findings of fact,that its 2010 system-wide demand is 5.2 mgd.rather than 6.12 mgd. Thus, despite accepting the ALJ’s recommendation for a decrease in the.maximum combined annual average ground water allocation for the Area Il, Area Ill and Area IV. wellfields from 6.01 mgd to 5.2 mgd, the City is still-asking the. Board.to increase the annual average allocation for the Area IV wellfield from 0.75.mgd to 2.75.mgd. As a result, and as District staff points out in its response to the City’s exception, the City is now essentially asking for. proportionally more redundancy in its, capacity than what the City requested and offered in evidence at the final hearing. The City has not cited to any evidence to support its request for increased redundancy, the ALJ clearly did not make any finding that would support such an increase in redundancy, and the Board cannot, and declines to, now accept new evidence that would support the City’s request for increased redundancy. Dept of Transp., 396 So.2d at 783 (applicant cannot offer new evidence after the administrative hearing closes). 111 Finally, the Board disagrees that rejection of the ALU’s ultimate recommendation is warranted based on the final order entered by this District in the case of The Corporation of the President of the Church of Jesus Christ of Latter Day Saints v. St. Johns River Water Management District and City of Cocoa, DOAH Case Nos. 89-0828, 89-5419, 90-1488 (SJRWMD Final Order December 12, 1990), affirmed 590 So.2d 427 (Fla. 5" DCA 1991)(“Cocoa”). The Cocoa case is discussed is in some detail in the Board's ruling on the District's Exception No. 2 to COL 274. In that case, the Board concurred with the ALJ's finding, based on the evidence, that a 20 percent reserve capacity was appropriate under the circumstances of the case. As explained:above, modification would be inconsistent with the findings of fact in this case and would result in an amount of redundancy for which no evidence was presented.® City’s Exception No. 2 The City takes exception to FOFs 256 and 257 and COLs 337 and 338, which pertain to the ALJ’s conclusion that Petitioners have standing to challenge the issuance of the CUP. The District has substantive jurisdiction to determine standing. Billie, DOAH 03-1881 (SJRWMD- 2004). For the reasons below, the Board rejects the exception. FOF 256 states as follows: As found, Miami Corporation owns property immediately adjacent tothe proposed Area IV Wellfield, and Ms. Clark owns property a little more than a mile away. Both alleged and attempted to prove that SAS drawdown from the proposed CUP would degrade wetlands on their property and Interfere with their legal use of & The City also relies on the case of Harloff v. City of Sarasota, 575 So.2d 1324 (Fla. 2d DCA 1991) rev. den., 583 So.2d 1035 to support its position. In that case, the Southwest Florida Water Management - District rejected the water allocation recommended by thé ALJ because it determined that the ALJ’s findings of fact did not establish that the applicant had shown that his water use would not interfere with a legally existing use of water. It issued a CUP for an amount that was consistent with the ALJ’s findings of fact. By contrast, the City in its exception is asking this Board to:issue a CUP for an amount that would be inconsistent with the ALJ’s findings of fact. 112 groundwater, and that saline intrusion from the proposed CUP would degrade the water quality of the UFAS resource which they use for potable water. This finding is based on competent substantial evidence. Petitioners’ tendered expert witnesses in the fields of geology, hydrogeology, groundwater modeling, water quality, biology and wetland ecology to substantiate the allegations of their petitions. (RO at 8- 9). Petitioners attempted prove that the proposed use would impact wetlands on their property, interfere with their legal use of water, and lead to saline intrusion that would impact their water uses. (T: 3679-3705, 3713-3859, 3875-4004, 4012-4187, 4195- 4353, 4361 “4544, 4903-4984, 4984-5010, 5016-5101, 51 42-5227, 5236-5267, 5255- 5267, 5268-5412, 5425-5577, 5672-5737, 5742- 5851, 5858-5863; Pet: Ex. 170 and 334 at 22,.29, 33, 34, 35, 41, 42 and Exhibit 3). FOF 257 states as follows: As found, Petitioners did not prove those allegations; however, the evidence was that both Petitioners have substantial interests (the quality of water in the aquifer from which their wells withdraw water and wetlands on their property) that would be.affected by the proposed CUP at least to some. extent. This finding is based on competent substantial evidence. In FOF 164, the ALJ found that the City’s (SDI’s) model predicts a drawdown of 0.11 feet (approximately 1 inch) in. the SAS and a drawdown of 2.2 feet in the UFAS at Ms. Clark's. property. Petitioners’ expert witness Dr. Dennis testified that based on the Petitioners’ model, there would be adverse impacts to wetland functions and wildlife on Miami Corporation property from the proposed wellfield. (T:4938-39, 4959; Pet. Ex. 195, 196, and 334 at Ex. 3). While the ALJ found that it is not likely the drawdown from.the proposed wellfield will have adverse impacts, his findings in FOFs 165 and 168 acknowledge that there is uncertainty. 113 As stated in the Recommended Order, a party does not have to prevail on the merits of the case to establish standing. Otherwise, every losing Petitioner would flack standing. Billie, DOAH 03-1881 (SJRWMD 2004) (the burden is not whether the Petitioners have or will prevail on the merits); Lane, DOAH No. 05-1609 (DEP 2007) (standing and the merits of a claim are different concepts); Sun States Utilities, Inc. v. Destin Water Users, Inc., 696 so.2d 944, 945 n.1 (Fla. 1%* DCA 1997) (standing to maintain a lawsuit depends on whether the party has a personal stake in the outcome of the proceeding and should not be confused with the merits of a claim). In this proceeding, it is uncontested that Petitioners own property near the proposed wellfield. The Petitioners alleged and attempted to prove that their personal interests as to their nearby properties, involving water quality, wetland impacts, and water use, would be adversely affected by the operation of the proposed wellfield. See Miakka Communit Club v. El Jobean Philharmonic Grou 9,_Inc.., 1 F.A.L.R. 5616, 5629 (even though the proof failed to show injury in fact, petitioner had standing to contest the CUP because of potential injury); cf. The Corp. of the President of the Church of - Jesus Christ v. St. Johns River Water Mgmt. District, DOAH 89-0828 (SURWMD 1990) (the petitioners lacked standing by failure to present any affirmative evidence of their alleged injuries and instead attempted only to discredit the opposing parties’ evidence). In other words, Petitioners contended a personal stake, different in kind to the general public, that may be directly affected by the proposed wellfield. Gregory v. Indian River County, 610 So.2d 547, 554 (Fla. 1 DCA 1992) (the reasin for the Aagrico® standing test is to ensure that a party has a “sufficient interest in the outcome of the litigation which warrants the court's entertaining it” and to assure that a party has a personal 8 Agrico Chemical Co. v. Dep’t. of Environmental Regulation, 406 So.2d 478 (Fla. 2d DCA 1981). 114 stake in the outcome so he will adequately represent the interest he asserts); St. Joe Paper v. Dep't of Community Affairs, 657 So.2d 27 (Fla. 1* DCA 1995) (§ 120.57 requires an injury in a manner beyond the injury which might be sustained by the general public). FOFs 21.and 29 found that Titusville’s proposed wellfield could commence operation as early.as January 1, 2009. Consequently,-Petitioners’ contentions are therefore sufficiently real and direct to constitute an injury in fact to their personal interests. Town of Palm Beach v. Department of Natural Resources, 577 So. 2d 1383 (Fla. 4th DCA 1981) (the injury-in-fact part of the test focuses on whether the injury arising from the agency action is of a specific, real immediacy warranting relief and is not remote or speculative). Finally, Petitioners’ contended injuries fall within the.zone of interest of Chapter 373, .F.S.,.and Chapter 40C-2, F.A.C. The zone of interest component of the standing test focuses on whether the type of injury asserted falls within the scope.of the agency's Statutory authority to protect. Billie, DOAH 03-1881 (SJRWMD 2004); Boca Raton Mausoleum Inc., v. State Department of Banking and Finance, 511 So. 2d 1060.(Fla. ist DCA 1987). Petitioners’ contentions and evidence regarding. interference with an existing water use, environmental harm, water quality impacts, and wetland. impacts fall within the District's consumptive use permitting criteria. In short, Petitioners substantial interests are related to the issues that are to be resolved in the administrative proceedings. Gregory, 610 So.2d-at 554 (the intent of Agrico was to preclude parties whose substantial interests are totally unrelated to. the issues that are to be resolved in the administrative proceedings). 115 RULINGS ON DISTRICT’S EXCEPTIONS District's Exception No. 1 The District takes exception to the first sentence of FOF 130 on the grounds that there is no competent substantial evidence to support the sentence as written. For the reason described below, the Board grants the exception. The first sentence of FOF 130 is modified as follows: Several water quality grab samples were collected in packer tests'at specific . depth intervals at Test Site 3. At the interval of 270-295 feet below land surface, two samples were taken with chloride concentrations of 74 mg/l and 450 mg/l. The evidence shows that the packer tests were taken at Test Site 3, not Test Site 3At, as stated in the Recommended Order. (City Ex. 305 at 62). It appears that a period was inadveriently left out between the number “3” and the word “At.” Petitioners concur with the District's exception, and the City takes no position. . Correcting this scrivener’s error will not change the outcome of the proceeding. District's.Exception:No. 2 District staff take exception’ to the second and third sentence of COL 274 to the extent that the ALJ “incorrectly concluded that no redundancy is allowed under the District's rules, including Section 12.2. et. Séq., A.H. “ For the reasons set forth below, the Board grants the exception. COL 274 states: The City and the District take the position that the District encourages water supply applicants to build redundancy into their water supply systems so they have the flexibility to rotate water use among'‘several different facilities. But there - is nothing in the District’s rules about building redundancy, or giving guidance as to how much redundancy should be encouraged. To the contrary, A.H. Section 12.2 is reasonably clear that “the applicant's requested quantity” may not exceed the amount of water required for reasonable beneficial uses, as calculated under 116 A.H. Section 12.2. As found, the need as calculated under that rule for purposes of the pending application does not exceed 0.75 mgd. (Emphasis added.) A logical inference from the second and third sentences of this COL is that the District's rules, including Section 12.2, A.H., preclude redundancy or reserve capacity in a CUP applicant’s water supply from being determined a reasonable-beneficial use of water. The Board disagrees with this inference and wishes. to make clear that it continues to interpret its rules to allow redundancy (‘reserve capacity”) to be considered as part of the reasonable-beneficial use criterion in Rule-40C-2.301(4),.F.A.C."° .... - The issue of whether water may be allocated to providé redundancy ina permittee’s water supply was litigated and came before the Board of this District in the case of The Corporation of the President of the Church of Jesus.Christ, DOAH Case Nos. 89-0828, 89-5419, 90-1488 (SURWMD Final Order December 12, 1990), affirmed 590. So.2d 427 (Fla. 5" DCA 1991) (“Cocoa”). In-that case, the hearing officer recommended that this District grant a CUP to the City of Cocoa with.an allocation that included a 20% reserve capacity in excess of Cocoa’s projected demand. One of the petitioners in the case filed an exception arguing that.the allocation exceeded:the quantity necessary for economic and. efficient utilization of water. The Governing Board rejected the exception and determined that the entire. allocation, including the 20 percent reserve capacity, was an economic and efficient use consistent with the District's rules. The Board notes that pursuant to Section 120.68(7)(e)3., F.S., an appellate court may remand or overturn an exercise of agency discretion if “inconsistent with officially'stated agency policy or a prior agency practice, if deviation therefrom is not explained by the agency.” See e.g., Gessler v. Department of Business and Professional Regulation, 627. So.2d 501 (Fla. 4" DCA 1993); Bethesda Healthcare System, Inc. v. Agency for Health Care Administration, 945 So.2d 574 (Fla. 4" DCA 2006). 117 fact: In the Recommended Order, the hearing officer made the following findings of 32. The total capacity of the City’s wellfield with all existing active wells operating is approximately 38 MGD. In 1989 the peak demands for water came close to exceeding capacity on several occasions, thus there is currently no reserve capacity in the wellfield. 33. Due to the lack of reserve, the District issued water shortage orders dated November 14, 1989 and April 10, 1990, imposing water shortage restrictions | in the City’s service area: 34. is essential to sound wellfield mahagement.- It provides flexibility and the abilit to meet water demands durin routine maintenance orin ‘Additional wells will allow the city to redistribute pumpage to reduce the negative impacts ‘of pumping in the eastern wellfield. 35. Twenty percent, the amount requested in the City’s application, is a reasonable and appropriate reserve in excess of the City’s projected r maximum daily demand. The hearing officer then expressly stated in her recommended conclusions .of law that an aliocation that included redundancy (reserve capacity) was a reasonable-beneficial ' use: A. Reasonable-Beneficial Use 40C-2.301(4)(a), F.A.C. 126. - The City’s proposed usage is in a quantity necessary for economic:and efficient utilization. The per capita usage figures for the service area are reasonableand the amounts requested are consistent with competent: - projections of the service areas growth and needs. The water is needed t to meet existing and future-demands, to provide a reserve capacity, and to alleviate: water quality problems in the eastern wellfield. 40C-2.301(4}(b), F.A.C. The purpose of the usage, to serve the areas’ residents, and industrial and commercial community is reasonable and consistent with the public interest; as is the purpose of addressing the chloride problem in the eastern welifield. (Emphasis added) The District's Governing Board adopted the entire Recommended Order, including this conclusion, as the final action of the St. Johns River Water Management District. This final order regarding the City of Titusville’s CUP application for the Area IV Wellfield should not be construed as a change in the Board’s interpretation of its rules that providing redundancy (“reserve capacity”) can be a reasonable-beneficial use under Rule 40C-2.301(4)(a)-(b), F.A.C. District's Exception No. 3 The District takes exception to. the citation in COL 328 on the grounds. that that there is no competent substantial evidence to support the citation as written. For the reasons described below, the Board agrees and grants the exception. The citation in COL 328 is modifi ed as follows: See, e.g., Marion County v. Greene and SJRWMD DOAH Case No. 06-2464 (SJRWMD Final Order 2007) at Appendix CD pp. 59 and 60 of the District’s Proposed Recommended ‘Order. The District included a copy of the above-referenced final order in Appendix:C of its Proposed Recommended Order. The Marion County-final order does not itself contain an appendix.. Therefore, it appears that-the citation should: be to. Appendix C.of the District's Proposed Recommended Order. Petitioners concur with the District's exception, and the City takes no position. Correcting this scrivener’s error will not change the outcome of the proceeding. - FINAL ORDER ACCORDINGLY, IT IS HEREBY ORDERED: The Recommended Order dated July 31, 2007, attached hereto as Exhibit A, is adopted in its entirety except as modified by the final action of the Governing Board of the St. Johns River Water Management District in the rulings on Petitioners’ Exception 119 No. 101 (COL 331) and District's Exception Nos. 1 and 3 (FOF 130 and COL 328)." The City’s application number 99052 for a consumptive use permit is hereby issued under the terms and conditions contained in the Technical Staff Report dated May 1, 2006, attached hereto as Exhibit B, except that Other Conditions 4, 5, 7, 8 and 9 shall be modified to read as follows: 4. Maximum annual ground water withdrawals from the Floridan aquifer in the Area IV wellfield for public supply must not exceed 273.75 4,003.8 million gallons (0.75 2.75 mgd average) in 2009 through 2010. 5. Upon the Area IV wellfield being operational, the combined annual ground water withdrawals for public supply from the Area Il, Area Ill, and Area IV wellfields must not exceed: 1,898.0 284 million gallons (5.2 5-79 mgd average) in 2009 and 2010. In the event that the permittee receives water from the City of Cocoa for potable use, then the allocation for-any:year above shall:be reduced an amount equivalent to the quantity provided to > the permittee by the City of Cocoa in‘that:year. 7. Maximum. monthly ground water withdrawals :from.the Floridan Aquifer at the Area IV wellfield shall not exceed 36.1 432.3 million gallons (1.20 4-44 million.gallons per day average) in 2009 through 2010. 8. Dry season pumping from the Floridan Aquifer. at the Area IV Wellfield shall not exceed 126.08 462-3 million gallons (1.05 3-85’million galions per day average) during any four consecutive months. . 9. Upon the Area IV welifield being operational, the combined maximum daily ground water withdrawals from.the Area II, Area Ill, and Area IV Wellfields shall not exceed: L. Z80 8:88 million gations | in 2009 and 2010. "In addition, the Board also granted, either in whole or in part, the following exceptions: City’s Exception No. 1 and District’s Exception No. 2. While the rulings on these exceptions did not result ina textual modification of the Recommended Order, the Recommended Order should be construed consistent with the Board’s ruling on each of these exceptions. 120 The maximum daily ground water withdrawal from the Area IV Wellfield shall not exceed 1.77 6.5 million gallons and may be fully utilized only during severe drought periods when the existing water sources cannot be further used without inducing water quality degradation or exceeding maximum daily and annual rates listed herein. ‘Inthe event that the permittee receives water from the City of Cocoa for potable use, then the allocation in any year above shall be reduced an amount equivalent to the quantity provided to the permittee by the City of Cocoa in that year. DONE AND ORDERED this A day of September, 2007, in.Palatka, Florida... ST. JOHNS RIVER WATER MANAGEMENT DISTRICT ‘KIRBY BI GREEN Ill EXECUTIVE DIRECTOR RENDERED this 374 day of September, 2007. Copies to: Karen Coffman, Esquire Thomas |. Mayton, Esquire Mary Ellen Winkler, Esquire 4049 Reid Street Palatka, FL 32177 J. Stephen Menton, Esquire Rutledge, Ecenia, Purnell & Hoffman, P.A. 121 215 S. Monroe St., Suite 420 Tallahassee, FL 32301 Vivian Arenas, Esquire Edward P. de la Parte, Jr., Esquire Nicolas Q. Porter, Esquire. 101 E. Kennedy Blvd. Suite 3400 Tampa, Fk: 33602 Frederick L. Aschauer, Jr., Esquire Chris H. Bentley, Esquire John L. Wharton, Esquire Rose, Sundstrom & Bentley, LLP 2548 Blairstone Pines Drive Tallahassee, FL 32301 122

Docket for Case No: 05-000344

Orders for Case No: 05-000344