STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CITY OF LAKELAND,
Petitioner,
vs.
SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT,
Respondent.
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) Case No. 07-0564
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RECOMMENDED ORDER
A duly-noticed final hearing was held in this case by Administrative Law Judge T. Kent Wetherell, II, on August 6-10, 13-16, and 21, 2007, in Lakeland, Florida.
APPEARANCES
For Petitioner: Segundo J. Fernandez, Esquire
Timothy P. Atkinson, Esquire
Oertel, Hoffman, Fernandez & Cole, P.A.
301 South Bronough Street, Fifth Floor Post Office Box 1110
Tallahassee, Florida 32302-1110
For Respondent: Dominick J. Graziano, Esquire
Bush, Graziano & Rice, P.A. Post Office Box 3423
Tampa, Florida 33601-3423 and
Joseph J. Ward, Esquire
Southwest Florida Water Management District
2379 Broad Street
Brooksville, Florida 34604
STATEMENT OF THE ISSUE
The issue is whether the Southwest Florida Water Management District (District) should issue water use permit (WUP) No.
2004912.006 to the City of Lakeland (City), and if so, how much water should be allocated under the permit and what conditions should be imposed on the allocation, particularly in regard to withdrawals from the City's Northeast Wellfield (NEWF).
PRELIMINARY STATEMENT
On December 29, 2006, the District gave notice of its intent to issue WUP No. 2004912.006 (the proposed permit) to the City. The proposed permit allocates the City 35.03 million gallons per day (mgd) of water through 2013, rather than the
mgd through 2018 requested by the City. Among other conditions, the proposed permit imposes limits and a phasing schedule on the withdrawals from the City’s NEWF, and it requires the City to obtain additional approvals from the District prior to increasing withdrawals at the NEWF beyond 1.5
mgd.
On January 23, 2007, the City filed a petition with the
District requesting an administrative hearing pursuant to Sections 120.569 and 120.57(1), Florida Statutes.1 The petition argues that the proposed permit “is not the permit for which the City applied,” and alleges that “reasonable assurances have been
provided for all requested water allocations . . . in the City’s permit application to the District.”
On January 30, 2007, the District referred this matter to the Division of Administrative Hearings (DOAH) for the assignment of an Administrative Law Judge to conduct the hearing requested by the City. The referral was received by DOAH on February 1, 2007.
The final hearing was initially scheduled to begin on June 18, 2007, but it was continued to August 6, 2007, at the request of the parties. The final hearing was held over a period of 10 days, concluding on August 21, 2007.
The City presented the testimony of 11 witnesses: Charles Garing (expert), Charles Drake (expert), Bruce LaFrenz (expert), Ken Glass (fact), Dr. Robert Maliva (expert), Dr. Weixing Guo (expert), William Musser (expert), Mary Hayes (expert),
Dr. David Depew (expert), Dr. Michael Dennis (expert), and Dr. Thomas Missimer (expert). The District presented the testimony of nine witnesses: Ken Weber (expert), Joe Oros (fact), David Carpenter (fact), Dann Yobbi (expert), Robert Peterson (expert), Dr. Mark Stewart (expert), John Emery (expert), Dr. Brian Ormiston (expert), and Dr. Scott Emery (expert). The areas in which the experts were tendered and
accepted are set forth in the Transcript of the final hearing.
The following exhibits were received into evidence: City Exhibits 1(a)(1) through 1(a)(74), 1(b)(1) through (1)(b)(3), 2 through 24, 26 through 39, 41, 43, 48 through 52, 54, 56 through
59, 62, 65, 66, 82(a) through 82(c), 83, 84, 89, 107 through
111, 118, 124, 125, 127, 129a through 129h, 130, 136, 140,
140(a), 141 through 144, 163, 166a, 168, 170, 172(a) through 172(f), 177(a) through 177(c), 187(a), 194, 201(a) through 201(i), and 202(a) through 202(c); and District Exhibits 2 through 6, 8, 9, 12 through 15, 18, 29, 32, 32a, 33, 35, 36, 59,
61, 63, 68, 69, 71, 85, 87a, 87b, 87c, 87h, 87k, 88(a)(1), 89c,
90a through 90c, 91a through 91c 102, 113, 122 through 125,
125a, 126, 127, 129 through 132, 153, and 154a through 154c.
The 10-volume Transcript of the final hearing was filed on September 13 (Volumes I through VI and X) and October 22, 2007 (Volumes VII, VIII, and IX). The parties initially requested and were given until October 1, 2007, to file proposed recommended orders (PROs). The deadline was twice extended at the request of the parties. The PROs were timely filed on October 22, 2007, and have been given due consideration in the preparation of this Recommended Order.
Each PRO includes a draft permit and a draft environmental monitoring and management plan (EMMP). The draft permit and EMMP attached to the City’s PRO were presented at the final hearing in City Exhibits 84 and 168. The draft permit and EMMP
attached to the District’s PRO appear to have been developed after the final hearing in response to the evidence presented at the hearing.
On December 26, 2007, the District filed a motion to reopen the record for additional evidence on the issue of reuse. The motion was denied in an Order entered on December 27, 2007.
FINDINGS OF FACT
Introduction
This is an unusual case in that the District gave notice of its intent to issue a permit that the City does not want and that the District staff testified that the City is not even entitled to based upon the information submitted prior to and at the final hearing.
That said, there is no disagreement between the parties that a permit should be issued to the City. Indeed, despite the District Staff's testimony that the City failed to provide “reasonable assurances” prior to or at the final hearing on a variety of issues, the District takes the position in its PRO that a permit should be issued to the City, subject to various conditions and limitations.
There is also no disagreement between the parties that the permit should include an allocation of 28.03 mgd from the City’s Northwest Wellfield (NWWF).
The main areas of disagreement between the District and the City are the duration of the permit; the total allocation of water under the permit; and, perhaps most significant, the total
allocation from the NEWF.
Parties
The City is an incorporated municipality located in Polk County.
The City is within the boundaries of the District and is within the Southern Water Use Caution Area (SWUCA) designated by the District.
The City is the applicant for the WUP at issue in this case, No. 20004912.006.
The City operates a public water utility that provides potable water and wastewater services to customers in and around the City. The utility’s water service area extends beyond the City limits into surrounding unincorporated areas of Polk County.
The District is the administrative agency responsible for conservation, protection, management and control of the water resources within its geographic boundaries pursuant to Chapter 373, Florida Statutes, and Florida Administrative Code Rule Chapter 40D.
The District is responsible for reviewing and taking final agency action on the WUP at issue in this case.
Stipulated Facts
The parties stipulated that the City’s substantial interests have been adversely affected by the District’s intent to issue the proposed permit, and that the proposed permit is different from the permit that the City applied for.
The parties also stipulated that there is reasonable assurance that the City’s proposed water use will not interfere with a reservation of water as set forth in Florida Administrative Code Rule 40D-2.302; that the proposed use will not significantly induce saline water intrusion; that the proposed use will incorporate the use of alternative water supplies to the greatest extent practicable; and that the proposed use will not cause water to go to waste.
The City’s Wellfields
Overview
The City obtains the water that its water utility provides to its customers from two wellfields, the NWWF and the NEWF.
The NWWF is located north of Lake Parker in close proximity to Interstate 4 and Kathleen Road. It provides water to the Williams Water Treatment Plant, from which the water is distributed throughout the City water utility’s service area.
The NWWF is located on the Lakeland Ridge, which is a geographic feature that is approximately 250 to 260 feet above
sea level. The Lakeland Ridge has a thick clay intermediate confining unit that isolates the surficial aquifer from the underlying aquifers.
The NEWF is located to the north of Interstate 4, adjacent to Old Polk City Road. It provides water to the Combee Water Treatment Plant (Combee), from which the water is distributed throughout the City water utility’s service area.
The NEWF is located at an elevation of approximately
135 feet above sea level. The surficial aquifer at the NEWF is relatively thin, and the intermediate confining unit at the NEWF is not as thick as it is at the NWWF. The Upper Floridan Aquifer (UFA) begins at approximately 65 below land surface at the NEWF.
The City’s water treatment plants are traditional lime softening plants and are not able to treat brackish groundwater or surface water to the extent necessary for human consumption. It would be cost-prohibitive to implement a process to treat brackish water at the plants.
Relevant Permitting History
The City’s water utility has been in operation for more than 100 years, and the NWWF has been in operation since at least the early 1980’s.
The earliest permit for the NWWF contained in the record is permit No. 204912, which was issued by the District in
January 1987. The permit authorized average annual withdrawals of 28.3 mgd, and had an expiration date of January 1993.
The NEWF was first permitted by the District in December 1989. The permit, No. 209795.00, authorized the City to pump an average of 9.0 mgd from the NEWF. The permit had a six-year duration, with a December 1995 expiration date.
The permits for the NWWF and the NEWF were combined into a single permit in October 1993. The permit, No. 204912.03, authorized the City to pump a total of 28.1 mgd, with
9.0 mgd from the NEWF. The permit had a 10-year duration, with an October 2003 expiration date.
In December 2002, the City's WUP was administratively modified pursuant to the District’s SWUCA rules. The modified permit, No. 20004912.004, did not change the permitted quantities at the NEWF or the 2003 expiration date, but the total allocation was reduced to 28.03 mgd.
In October 2003, prior to the expiration of the existing permit, the City submitted an application to renew and modify its WUP permit. The application requested a 20-year permit with a total allocation of 32.8 mgd, with up to 16.0 mgd from the NEWF.
During the permit review process, the City amended its application to increase the requested total allocation by 4.0 mgd (from 32.8 mgd to 36.8 mgd) and to decrease the requested
duration of the permit by five years (from 2023 to 2018). The
36.8 mgd requested by the City was to be allocated between the NWWF (28.03 mgd) and the NEWF (8.77 mgd).
The City supplemented its application during the permit review process in response to multiple requests for additional information and clarification from the District. The information provided by the City in support of the application is extensive; the “permit file” received into evidence consisted of approximately 2,500 pages, and the entire file is approximately twice that size.2
The review process culminated in what the District staff considered to be a “negotiated permit”3 that would initially authorize pumping of 33.03 mgd, with 28.03 from the NWWF, 1.5 mgd from the NEWF, and 3.5 mgd from a production well to be constructed at Combee. The proposed permit includes a phasing schedule that would allow for increased withdrawals -- up to 35.03 mgd total and 4.0 mgd from the NEWF4 -- if the City is able to demonstrate to the District’s satisfaction that the increased pumping will not cause adverse environmental impacts.
The District gave notice of its intent to issue the proposed permit on December 29, 2006, and the permit was placed on the “consent agenda” for the District Governing Board’s meeting on January 30, 2007.
On January 23, 2007, before the proposed permit was considered by the Governing Board,5 the City timely filed a petition challenging the proposed permit. The petition alleges that the proposed permit does not allocate sufficient water to meet the City's projected population demands in 2018 and that it does not allocate water quantities from the NEWF and the NWWF in the manner requested by the City.
The NEWF
The NEWF is approximately 880 acres in size. Wetlands comprise approximately half of the site.
The NEWF is located within the boundaries of the Green Swamp, which is an area of critical state concern (ACSC) designated under Chapter 380, Florida Statutes.
The Green Swamp is a hydrologically and environmentally important feature of central Florida encompassing thousands of acres of cypress wetlands, marshes, and forests.
In 1992, a task force recommended that public water supply wellfields “of capacity greater than 1.8 mgd (average 3.6 mgd maximum)” from the UFA be discouraged in the Green Swamp ACSC in favor of wells from the Lower Floridan Aquifer in order to “mitigate drawdown impacts to the surficial aquifer system and resulting dehydration of wetlands . . . .” There is no evidence of that recommendation being formally adopted by the
District or any other governmental agency, and the District does not have more stringent permitting criteria for WUP applications in the Green Swamp, except that it considers potential adverse impacts to all isolated wetlands and not just those larger than one-half acre in size.6
The City installed five 16-inch production wells at the NEWF, along with a number of associated monitoring wells. The production wells, which are cased to approximately 120 feet with a total depth of approximately 750 feet, pump water from the UFA.
Pumping at the NEWF started in October 2005. The City has been pumping 4.0 mgd from the NEWF since that time.
The City has spent over $34 million to bring the NEWF into service. The costs directly related to the acquisition of the NEWF site and the installation of the wells at the site account for approximately $7.6 million of that amount; the remainder of the costs are for associated infrastructure, such as the installation of water lines from the NEWF site and the construction of Combee.
The wetlands on the NEWF site are predominantly isolated cypress wetlands, although there are some connected systems. Isolated wetlands are more susceptible to impacts from water deprivation than are connected wetland systems.
The uplands on the NEWF site consist primarily of open pasture and fields and areas of planted pines.
Extensive drainage improvements were constructed on the NEWF site between 1941 and 1980 when the site was being used as improved pastureland for cattle grazing and managed woodland for logging and silviculture. The improvements included the construction of a network of drainage ditches, culverts, roads, a grass landing strip, and a gas pipeline.
The intent and effect of the drainage improvements was to remove surface water from the onsite wetlands. Historical aerial photographs show that these efforts were successful.
The wetlands on the NEWF were adversely impacted by the drainage improvements, but for the most part, they are still functioning, albeit low-quality wetlands.
The extensive ditching on the NEWF site continues to have an adverse impact on the wetlands even though the ditches have not been maintained and do not function as efficiently as they once did.
The planted pine trees on the NEWF site may also be adversely affecting the wetlands through increased evapotranspiration from the surficial aquifer. However, the evidence was not persuasive regarding the extent of the impact from evapotranspiration.
The present condition of the wetlands at the NEWF is not the result of recent activity. The biological indicators in the wetlands (e.g., adventitious roots on cypress trunks, large oak trees in the wetlands, red maple trees in areas that had at one time been dominated by cypress trees) show that the degraded condition of the wetlands dates back decades.
The progressive draining and degradation of the wetlands caused by the ditching and other drainage improvements constructed on the NEWF site is apparent in the historic aerial photographs of the site. The size of the wetlands and the “hydrologic signatures” (e.g., standing water around the rims of wetlands and across the site, extensive cypress canopies, etc.) visible on earlier aerial photographs are less visible or non- existent in more recent aerial photographs.
The wetlands on the NEWF site have shown no biological indicators of impacts from the pumping at the NEWF that started in October 2005. This does not necessarily mean that the pumping is not impacting the wetlands because the parties' experts agree that it can take many years for such biological indicators to appear.
The more persuasive evidence establishes that the historical drainage improvements on the NEWF site were the primary cause of the degraded condition of the wetlands.7
The more persuasive evidence also establishes that unless altered, the drainage improvements on the NEWF site will continue to have an adverse effect on the wetlands.
The City proposed a conceptual Wetland Improvement Plan (WIP) that is designed to restore and enhance the wetlands on the NEWF. A central component of the WIP is the reengineering and alteration of the drainage features by installing “ditch blocks” in some areas and culverts in other areas. The WIP also includes not replanting the pine trees on the NEWF site once the existing planted pines are harvested.
The ditch blocks and other modifications to the drainage features are intended to hold water on the NEWF site and redirect it to the wetlands. This will help to hydrate the wetlands, increase soil moisture levels, and allow more water to percolate into the surficial aquifer following rain events.
The District staff expressed some concerns with the City’s WIP at the final hearing, but acknowledged that the plan’s “conception . . . has a lot of merit.” Indeed, in its PRO, the District recommends the “installation of ditch blocks and similar measures at the [NEWF] site.”
The WIP, if properly implemented, has the potential to enhance the wetlands by returning them to a more natural condition.
The City will likely need an Environmental Resource Permit (ERP) from the District before any system of ditch blocks can be installed. The details of the WIP can be worked out during the ERP permitting process.8
A good monitoring plan is part of providing reasonable assurances. The parties agree that a monitoring plan should be included as a permit condition, and the EMMPs attached to the parties’ respective PROs appear to be materially the same.
The City has monitored the wetlands at the NEWF since 1994, pursuant to a specific condition in the 1993 WUP permit. The methodology used by the City to monitor the wetlands was approved by the District, and despite the fact that the City has submitted biannual monitoring reports to the District for almost
14 years, the District expressed no concerns regarding the methodology or results of the monitoring until recently.
The District commenced its own wetland assessment procedure at the NEWF in May 2007, which included setting “normal pools” in several of the wetlands. “Normal pool” describes the level at which water stands in a wetland in most years for long enough during the wet season to create biological indicators of the presence of water.
The establishment of normal pools was part of the District’s efforts to establish the “existing natural system” against which any post-withdrawal adverse impacts at the NEWF
would be measured in accordance with Section 4.2 of the Basis of Review for Water Use Permit Applications (BOR).9
Normal pools could not be established in several of the wetlands because there was no measurable standing water above the surface in the wetland. District staff observed similar conditions –- i.e., no standing water in the wetlands –- on at least one occasion following a significant rain event prior to the start of pumping at the NEWF.
The District does not have a rule governing the setting of normal pools, but the City’s experts did not take issue with the normal pools set by the District or the methodology used by the District to set the normal pools.
The EMMP proposed by the City is an extensive monitoring plan that incorporates a series of onsite monitoring wells, wetland monitoring stations for vegetation and hydrogeology, monitoring of pumping rates and pumping data, and monitoring of rainfall data. The EMMP will make use of the extensive data that has been collected on the NEWF site since the 1990’s as well as the normal pools set by the District, and if properly implemented, the EMMP will detect any potential adverse impacts as they occur to allow for remedial mitigation.
The District staff acknowledged at the final hearing that the EMMP proposed by the City “with some minor modifications” is an appropriate plan to monitor changes in the
wetlands at the NEWF. The necessary "minor modifications" were not explained at the final hearing, and as noted above, there does not appear to be any material difference in the EMMPs attached to the parties’ respective PROs.
The Green Swamp is generally viewed as a “leaky” area, with little or no confinement between the surficial aquifer and the Floridan aquifer.
Regional data, including studies by the United States Geologic Survey (USGS) and the District, reflect that the NEWF is located in a “transitional area” between areas of little or no confinement to the north, northwest, and east of the NEWF and areas of thicker confinement to the south. However, at least one study (published in 1977 USGS report) shows the NEWF in an area designated as "poor" for its relative potential for downward leakage.
Regional data may be used to gain knowledge about the aquifer properties at a potential well site, but such data is not a valid substitute site-specific data. Indeed, the location of the NEWF in a “transitional area” makes site-specific data even more important.
The City used geologic cross-sections (e.g., soil borings and core samples) at the NEWF to determine the site’s lithologic characteristics. By contrast, the District relied primarily on USGS reports and other regional data to postulate
as to the lithologic characteristics of the NEWF. As a result, the City’s position regarding the lithologic characteristics of the NEWF was more persuasive than the District’s position.
The lithology of the NEWF site consists of a shallow, sandy surficial aquifer, which extends to a depth of 3 to 5 feet, proceeding downward to sandy clay and clay sand semi- confining layers, alternating with impermeable clay units, interspersed with an intermediate aquifer composed of sandy clays and clay sands that contain water, proceeding downward to the limestone of the UFA.
The presence of clay layers between the intermediate aquifer and the UFA, together with clay layers between the intermediate aquifer and the surficial aquifer, provide two layers of protection between the pumped aquifer and the surficial aquifer and wetlands, and serve to ameliorate any impacts to the surficial aquifer caused by withdrawals from the UFA.
“Leakance” is a measure of vertical conductivity that describes the rate at which water flows through a confining unit. As a result, leakance is one of the most important factors to consider when modeling surficial aquifer impacts and potential wetland impacts from groundwater pumping.
Generally, a higher leakance value is an indication of a “leakier” system with less confinement between the surficial
aquifer and the UFA. The “leakier” the system, the greater the impacts of pumping on the surficial aquifer will be.
The District contends that the confining unit underlying the NEWF is “leaky” and that the pumping at the NEWF is likely to directly and adversely affect the onsite wetlands. However, the more persuasive evidence establishes that the lower leakance value derived by the City based upon the site-specific lithology of the NEWF and the data from the aquifer performance tests (APTs) conducted at the NEWF is more accurate than the higher leakance value urged by the District.
The purpose of an APT is to determine the hydrologic parameters of an aquifer. In particular, an APT is used to determine the transmissivity, leakance, and storage values of the aquifer.
Transmissivity is a measure of how easily water flows through the ground, and storage is a measure of the amount of water in the porous spaces of the aquifer. Generally, a higher transmissivity value and a lower storage value indicate better confinement.
There have been three APTs conducted at the NEWF.
The first APT (APT-1) was conducted in 1989 as part of the initial permitting of the NEWF. A high transmissivity value and a low storage value were calculated in APT-1. A leakance value was not calculated.
The results of APT-1 were presented to the District to justify the City’s request to pump 9.0 mgd from the NEWF, which the District approved.
The 1993 permit combining the NWWF and the NEWF required the City to conduct a long-term APT in order to “determine the leakance parameter between the surficial and intermediate aquifers and the leakance parameter between the intermediate and Upper Floridan aquifers.” The permit stated that if the hydrologic parameters obtained in the APT were different from those used in the model submitted in support of the initial WUP, the City would have to revise the model and, if necessary, modify the WUP to reduce withdrawals.
This second APT (APT-2) was a seven-day test conducted by the City in January 2001 in accordance with a methodology approved by the District. An “exceedingly low” leakance value of 4.5 x 10-4 gallons per day per cubic foot was calculated in APT-2. The transmissivity and storage values calculated in APT-
2 were essentially the same as the values calculated in APT-1.
The District expressed concerns with the results of APT-2, and in December 2001, the District advised the City that it should “proceed with caution during the planning of infrastructure (pipelines) for the [NEWF]” because the “wellfield may not be able to produce the volume of water the
City has stated that would like from the wellfield, without causing adverse impacts.”10
Based upon these concerns, the District conducted an APT (APT-3) at the NEWF in April and May 2003.
The parties’ experts agree that data from APT-3 is reliable, but the experts disagree in their interpretation of the data, particularly in regards to the leakance value.
The City’s experts calculated a leakance value of 1.4 x 10-4 feet per day per foot, which is a low leakance value. The expert presented by the District, Dann Yobbi, calculated a higher leakance value of 3.4 x 10-3 feet per day per foot, which suggests relatively “leaky” aquifer.
The leakance value calculated by the City’s experts is more persuasive than the value calculated by Mr. Yobbi because Mr. Yobbi did not “de-trend” the data from APT-3 based upon the general declines in water levels occurring at the time of APT-3. Indeed, Mr. Yobbi testified that he is in the process of revising his report on APT-3 to address this issue and he acknowledged that the surficial aquifer showed only a “slight response” to the pumping during APT-3.
The leakance value calculated by the City’s experts in APT-3 is consistent with the leakance value calculated in APT-2. The transmissivity and storage values calculated in APT-3 are also consistent with the values calculated in APT-1 and APT-2.
The reliability of the leakance values and other aquifer parameters calculated by the City’s experts for the NEWF is confirmed by water level data compiled by the City pursuant to the monitoring requirements in the existing WUP.
The water level data was collected from monitoring wells at the NEWF in the surficial aquifer, the intermediate aquifer, and the UFA. The City began collecting this data in 1994 and it continues to collect and report the data to the District as required by the existing WUP.
The water level monitoring data reflects that the surficial aquifer at the NEWF responds almost immediately to rain events. By contrast, the intermediate aquifer and UFA show a more subdued response to rainfall events, which is indicative of good confinement, especially between the UFA and the surficial aquifer.
The water level monitoring data shows that rainfall or lack of rainfall is the major controlling factor relative to the rate of surficial aquifer recharge at the NEWF.
The water level monitoring data since pumping began at the NEWF shows that the pumping at 4.0 mgd is having a minimal impact on the surficial aquifer at the NEWF. Indeed, the more persuasive evidence establishes that the general decline in water levels that has been observed in the monitoring wells at the NEWF over the past several years is more likely than not
attributable to the severe drought in the area and the onsite drainage features, and not the pumping at the NEWF.11
Moreover, the more persuasive evidence shows that following the start of pumping at the NEWF in October 2005, the water levels in the surficial, intermediate, and Floridan aquifers returned to the historic patterns of up and down response to rainfall events shown throughout the thirteen-year period of record: the surficial aquifer fills quickly (as it receives the rainwater directly) and empties quickly (through a combination of surface drainage, evapotranspiration, evaporation, and leakage), while the UFA responds with more gradual rising and falling (as water enters the aquifer through recharge areas and slowly percolates into the aquifer through more confined areas).
The analysis of the water level data collected during APT-3 showed a similar trend in the rates of decline in the surficial aquifer as were reflected in the hydrographic record of the monitoring well data collected by the City since 1994. The natural, post-rainfall rate of decline under non-pumping conditions was consistent with the rate of decline observed during pumping conditions in APT-3.
In sum, the interpretation of the water level data by the City’s experts was more persuasive than the interpretation by the District’s experts.
Modeling of Predicted Drawdowns and Impacts
The City utilized two different models to predict drawdowns from the proposed pumping at the NWWF and NEWF: the USGS “Mega Model” and the District’s District-Wide Regulation Model (DWRM).
The models incorporated regional data published by the USGS and the District as well as site-specific data from the NEWF, including the lithologic information collected through soil borings and the hydrologic parameters of the aquifers calculated in APT-3. The models were calibrated and de-trended to remove “background conditions” (e.g., regional water level declines) so that the models would only show the predicted effects of the pumping.
Once the calibration was complete, the models were run to simulate the effect of the pumping on the groundwater flows in the area. The models produced contour maps that showed the predicted drawdowns in the surficial aquifer as a result of the pumping.
The USGS Mega Model predicted that pumping the NEWF at
8.77 mgd would result in drawdowns of approximately 0.5 foot in the surficial aquifer in and around the NEWF.
The DWRM model predicted a 0.18 foot drawdown in the surficial aquifer in and around the NEWF when pumping the NEWF at 4.0 mgd, and a drawdown of 0.4 foot when pumping at 8.77 mgd.
The same models were used to predict the “cumulative” drawdowns by taking into account pumping by existing legal users as well as the pumping at the NWWF. The cumulative models assumed pumping of 36.8 mgd from the City’s wellfields.
The USGS Mega Model predicted that cumulative drawdowns in the surficial aquifer in and around the NEWF would be an additional 0.3 feet, with 8.77 mgd of pumping at the NEWF.
The DWRM model predicted that the cumulative drawdowns in the surficial aquifer in and around the NEWF would be 0.4 foot with 4.0 mgd of pumping at the NEWF, and 0.6 foot at 8.77 mgd of pumping at the NEWF.
The City utilized the 1995 data set of existing legal users in its cumulative DWRM modeling because that was the data set provided by the District. The difference between the 1995 data set and the more current 2002 data set is on the order of
20 mgd, which is inconsequential in comparison to the 1.1 billion gallons per day of withdrawals included in the model that are spread over the geographic extent of the District.
The predicted drawdowns in the surficial aquifers in and around the NEWF would be considerably greater if the hydrologic parameters calculated by Mr. Yobbi were used in the DWRM model. For example, the District’s modeling predicted drawdowns between 1.0 and 1.2 feet in the surficial aquifer in
and around the NEWF when pumping 1.5 mgd from the NEWF, 3.5 mgd from Combee, and 28.03 mgd from the NWWF.
The wetlands experts presented by the parties agreed that the level of drawdown predicted by the City at the NEWF has the potential to adversely impact the wetlands on the site. The experts also agreed that there is no bright line as to the amount of drawdown that will adversely impact the wetlands.
The City’s expert, Dr. Michael Dennis, testified that drawdowns in the surficial aquifer between 0.18 foot and 0.5 foot “probably” would not affect the wetlands at all, or at least “not measurably.” He also testified that drawdowns between 0.5 foot and one foot “are the drawdowns that you need to be concerned about.”
The District’s expert, John Emery, testified that a drawdown in the surficial aquifer of 0.4 foot “could” adversely affect the wetlands if no mitigation is provided, but that a drawdown of 0.2 to 0.3 foot might not.12
The WIP is expected to increase the amount of water that gets to the wetlands on the NEWF site. However, the extent to which the WIP will increase the water levels in the wetlands and offset the predicted drawdowns in the surficial aquifer is unknown at this point.
Limiting pumping at the NEWF to 4.0 mgd is reasonable and prudent based upon the uncertainty regarding the
effectiveness of the WIP and the experts’ testimony regarding the level of drawdowns that likely would, and would not, adversely affect the wetlands at the NEWF.
In sum, the more persuasive evidence establishes that the drawdown predicted at 4.0 mgd of pumping –- 0.18 foot (individually) and 0.4 feet (cumulatively) –- is not likely to adversely impact the already significantly degraded wetlands at the NEWF, particularly if the WIP is properly implemented.
Demand Projections
The City did not use the full 28 mgd allocated under its existing WUP. It pumped only 21 mgd in the 12 months preceding October 2003, when the permit was scheduled to expire; it pumped only 26 mgd in 2006; and the pumping for 2007 was expected to be approximately 1 mgd lower than the pumping in 2006.
The City's WUP application contained population and demand projections for different years in the future. For 2014 (the permit expiration date proposed by the District), the “functional population”13 of the service area was projected to be 183,264 and the average demand was projected to be 29.5 mgd; for 2023 (the original permit expiration date requested by the City), the projections were 203,721 people and 32.8 mgd; and for 2018 (the permit expiration date now requested by the City), the projections were 192,176 people and 30.9 mgd.
The projections in the WUP application were prepared in 2003, and City's primary consultant, Charles Drake, testified that the data was “accurate” and “reliable.” However, more recent data shows that the population projections in the WUP application were slightly understated.
The more recent data is contained in the “Water Services Territory Population Estimates and Projections” reports prepared by the City's utility department in March 2006 and March 2007. The reports include estimates of the functional population for prior years, and projections of the functional population for future years. The estimates reflect the “actual” population for a given year in the past, whereas the projections reflect the “expected” population for future years.
The estimates and projections in these reports, like the projections in the WUP application, were prepared in accordance with the methodology contained in the BOR. The District did not take issue with the projections in the reports or the WUP application.
The estimated functional population of the service area in 2003, 2004, 2005, and 2006 exceeded the population projected for those years in the WUP application. On average, the projected populations for each year understated the “actual” populations by approximately 3,500 persons.14
Likewise, the population projections for future years in the March 2007 report are higher than the population projections for the same years in the WUP application. For example, the report projects that the functional population of the service area in 2014 will be 191,208 (as compared to 183,264 in the WUP application), and that population in 2018 will be 203,247 (as compared to 192,176 in the WUP application).
The City presented “revised” population projections at the final hearing in City Exhibit 140. The revised projections were based on the projections in the March 2006 report, but also included data from the “water allocation waiting list” that is part of the City’s concurrency management system that was created by the City in response to legislation passed in 2005 requiring local governments to allocate and approve requests for water for new development.
The population projections in City Exhibit 140 are 234,959 in 2014; 247,390 in 2018; and 264,556 in 2023. These projections include an additional 43,471 persons related to new development in the concurrency management system, as well as the additional 2,600 to 3,000 persons projected per year in the WUP application and the March 2006 report.
The City failed to establish the reasonableness of the revised population projections. Indeed, among other things, the evidence was not persuasive that the additional population
attributed to the new development in the concurrency management system is not already taken into account, at least in part, in the annual population increases projected in the March 2006 report.15
The most reasonable population projections for the service area of the City's utility are those in the March 2007 report.16
The record does not contain demand projections directly related to the population projections in the March 2007 report. However, demand projections for those population projections can be inferred from the WUP application (City Exhibit 1(a)(2), at 0036) and City Exhibit 140 (at page 0015).
The 2014 projected population of 191,208 in the March 2007 report roughly corresponds to the projected population for 2018 in the WUP application (192,176) for which the projected demand was 30.9 mgd; and it also roughly corresponds to the projected population for 2008 in City Exhibit 140 (193,001), for which the projected demand was 28.7. Thus, in 2014, it is reasonable to expect that demand will be between 28.7 and 30.9
mgd.
The 2018 projected population of 203,247 in the March
2007 report roughly corresponds to the projected population for 2023 in the WUP application (203,721) for which the projected demand was 32.8 mgd; and it also roughly corresponds to the
projected population for 2009 in City Exhibit 140 (201,983), for which the projected demand was 30.2 mgd. Thus, in 2018, it is reasonable to expect that demand will be between 30.2 and 32.8
mgd.
The demand projections in the WUP for 2014 (29.5 mgd)
and 2018 (30.9 mgd) fall within the range inferred for the populations in the March 2007 report. Thus, even though the population projections in the WUP application for 2014 and 2018 are understated, the demand projections for those years in the WUP are still reasonable.
The demand projections in City Exhibit 140 –- 35.3 mgd in 2014 and 36.6 mgd in 2018 –- are overstated as a result of unreliable population projections upon which they are based.
Other Issues
Duration of Permit
The 1987 permit for the NWWF had a six-year duration, as did the original 1989 permit for the NEWF.
The 1993 permit had a 10-year duration, but that permit did not increase the amount of authorized withdrawals; it simply combined the authorizations for the NWWF and the NEWF into a single permit.
In this case, the City is requesting a permit that expires in 2018, which was a 15-year duration at the time the application was filed, but now is a 10-year duration. The
District is proposing a permit with a six-year duration, expiring in 2014.
The District is authorized to approve a WUP with a duration of up to 50 years. The District’s rules provide that the duration of the permit is to be determined based upon “the degree and likelihood of potential adverse impacts to the water resource or existing users.”
The District’s rules require that in order for the District to approve a permit with a duration of more than 10 years, the applicant is required to present sufficient facts to demonstrate that such a permit is “appropriate.”
Section 1.9 of the BOR provides “guidelines” regarding the duration of permits. The guidelines in the BOR are not binding on the District, but the nearly identical language in Florida Administrative Code Rule 40D-2.321 is binding on the District.
The BOR provides that a six-year permit is to be issued for renewal permits “with modification to increase the quantity withdrawn by more than or equal to 100,000 gpd or 10% or more of the existing permitted quantities, whichever is greater.”
The BOR and Florida Administrative Code Rule 40D- 2.321(2)(b) also provide that a six-year permit is to be issued
“where the potential for significant adverse impacts are predicted.”
The renewal permit that the City is seeking requests an increase of 8.7 mgd (from 28.1 mgd to 36.8 mgd) over the existing permitted quantities, which exceeds the 10 percent threshold in Section 1.9 of the BOR. Moreover, there is a potential for significant adverse impact from the renewal permit that the City is seeking. Accordingly, a six-year permit is appropriate under the District’s rules and the guidelines in the BOR.
The City failed to demonstrate why a longer permit duration is appropriate under the circumstances of this case.
District staff testified at the final hearing that the permit term should be calculated from the date the permit is issued, which will be some point in 2008. Therefore, the permit should have an expiration date of 2014.
Offsite Impacts
The City used the modeling described above to predict the drawdown in the UFA from the proposed pumping in order to determine whether there will be any adverse impacts on existing legal users.
The predicted drawdown in the UFA in the vicinity of the NEWF ranges from 1.6 feet to 2.4 feet with 4.0 mgd of
pumping at the NEWF, and between 3.4 feet and 5 feet with pumping at 8.77 mgd.
The predicted drawdown in the UFA in the vicinity of the NWWF ranges from 10.0 to 14.0 feet, with 28.03 mgd of pumping at the NWWF.17
These predicted drawdowns are not expected to have any adverse impacts on existing legal users that have wells in the UFA. Most permitted wells in the UFA use vertical turbine pumps, which can easily accommodate fluctuations in water levels of five feet or more.
The City has not received any complaints from existing users since it began pumping 4.0 mgd at the NEWF in October 2005.
The pumping at the NWWF, which has been ongoing for more than 20 years, has not caused any adverse impacts to existing legal users.
The City is required under the existing WUP to respond to any adverse impact complaints from existing legal users, and it is required to implement mitigation, as needed. In short, City is required to do whatever is necessary (e.g., relocating or increasing capacity of pump, lowering pipes) to return any well impacted by the pumping to its prior function.
The City did not evaluate the potential impacts of its proposed pumping on unpermitted wells because the District
does not maintain a database of unpermitted wells. However, the City acknowledges that if its pumping impacts an unpermitted well, it will be obligated to mitigate those impacts in the same manner that it is required to mitigate impacts to existing permitted users.
The predicted drawdowns for water bodies in the vicinity of the NWWF and the NEWF that have designated Minimum Flows and Levels (MFLs) -- Lake Bonny, Lake Bonnett, and the Cone Ranch wetlands -- are minimal, on the order of 0.1 foot.
The City evaluated the impacts of pumping on contaminated sites listed by the Department of Environmental Protection (DEP) in the vicinity of the NWWF and NEWF. Based upon the results of the modeling conducted by the City, there is no reason to expect that pumping at the NWWF and/or NEWF will have any measurable impact on those sites or lead to pollution of the aquifer.
Potential Impacts of NWWF Pumping
The only concern expressed by the District with respect to the pumping at the NWWF relates to the potential environmental impacts of the pumping on Lake Bonny and Lake Bonnett.
The City agreed to include those lakes in its EMMP.
Combee
Combee is located approximately four miles south of the NEWF.
There is a relatively thick clay confining unit at Combee, which, according to the District, makes it a better location for water withdrawals than the NEWF.
The District conducted an APT at Combee in 2006.
The hydrologic parameters derived from the APT, and the “preliminary modeling” performed by the District show that the City may be able to withdraw at least 3.0 mgd from wells at Combee.
The proposed permit authorized pumping of 3.5 mgd from Combee. The proposed permit also included a phasing schedule pursuant to which pumping at Combee would be decreased to 3.0 mgd if pumping at the NEWF reached 4.0 mgd.
The City expressed an interest in obtaining water from Combee throughout the permitting process. However, the City represented at the outset of the final hearing that the Combee well is “off the table because the City wishes to maximize the withdrawal allocation from [the NEWF].”
The City stated in its PRO that it is “willing to consider permitting a production well at [Combee] as a potential mitigation resource, should unexpected adverse impacts require the City to divert production to a back-up resource.”
The District stated in its PRO that the Combee well is “available for mitigation purposes," and that the City “should be encouraged to apply for a WUP for withdrawals from Combee up to 3.0 mgd to provide additional mitigation for pumping from the [NEWF].”
Pump rotation
Rotation of pumping between the wells in a wellfield is a standard practice, and it can be an effective mitigation technique.
The City utilizes well rotation programs at the NWWF and the NEWF in order to minimize the stress on the production aquifers.
Rotating pumping between the production wells at the NEWF is particularly appropriate because several of the wells are located in very close proximity to wetlands. Rotating the pumping will help to minimize the potential for adverse impacts to the wetlands.
The actual rotation schedule is an operational decision that is made based upon observed conditions at the wellfield site, rather than something that is typically included in the WUP.
Conservation and Reuse
The City has a four-tiered conservation rate structure, modeled after the District’s graduated water-rates
prototype. The rate structure imposes higher unit costs as individual consumption increases, thereby discouraging wasteful uses of water.
The City has a comprehensive leak detection program aimed at preventing the loss of water within the City’s water distribution system. This program has helped to reduce the per- capita per-day consumption rate for the City by reducing the volume of water that is wasted before it is delivered to the consumer.
The City has implemented irrigation restrictions aimed at reducing the quantities of water used by domestic customers for lawn and garden watering.
The per capita rate of water consumption is a measure of the effectiveness of a water conservation program; the lower the figure, the better.
The City’s per capita rate has increased in recent years, but its adjusted gross per capita rate has decreased. The adjusted gross per capita rate takes into account “significant users,” which are defined as non-residential customers other than golf courses that use more than 25,000 gallons per day or that represent more than five percent of the utility’s annual water use.18
The City’s per capita rate in 2005 was 145.69 gallons per day, and its adjusted gross per capita rate in that year was
132.01 gallons per day.
The adjusted gross per capita rate may not exceed 150 gallons per day within the SWUCA. Thus, the City will be required to continue its conservation programs (and implement additional programs, if necessary) to ensure that its adjusted gross per capita rate does not exceed 150 gallons per day over the life of the permit.
A portion of the City’s treated wastewater is reused for cooling at the City’s McIntosh Power Plant pursuant to a permit from DEP under Chapter 403, Florida Statutes. The DEP permit, No. FL0039772 (Major), states in pertinent part:
Industrial Reuse: Effluent is reused . . . as a non-contact cooling water at the City of Lakeland McIntosh Power Generating Plant. The volume of water used on a daily basis fluctuates on an as needed basis. There are no restrictions on the volume that can be routed to the reuse system. The power plant evaporates water in the cooling process or returns cooling water into the Glendale WWTP for final treatment in the manmade wetlands treatment system. The reuse in the power plant is not required as effluent disposal.
. . . .
The remainder of the City’s treated wastewater is “blended” with the water used at the power plant in order to meet the conductivity standards in the DEP permit and the conditions of certification for the power plant and/or directly
discharged into an artificial wetland system that ultimately discharges to the Alafia River.
Section 3.1 of the BOR (at page B3-2) provides that “Water Use Permittees within the SWUCA who generate treated domestic wastewater are encouraged to demonstrate that . . . 50% of the total annual effluent flows is beneficially reused.” (Emphasis supplied).
The BOR lists a number of uses of treated wastewater that are considered to be beneficial reuse. The list includes “industrial uses for cooling water, process water and wash waters” and “environmental enhancement, including discharges to surface water to replace withdrawals.”
The City’s use of treated wastewater for cooling at the McIntosh Power Plant is a beneficial reuse under the BOR.
The treated wastewater directly discharged by the City into the artificial wetland system is not a beneficial reuse under the BOR because it is not replacing surface water withdrawals.
The BOR requires all users within the SWUCA to investigate the feasibility of reuse, and requires the implementation of reuse “where economically, environmentally and technically feasible.”
The City has not recently undertaken a study or otherwise evaluated the feasibility of increasing its reuse.
The draft permit attached to the District's PRO includes a specific condition requiring the City to "provide a comprehensive study of reuse opportunities encompassing the [City's] water, wastewater, and electrical utilities systems" by January 1, 2009.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the parties to and subject matter of this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes.
The City has the burden to affirmatively prove by a preponderance of the evidence that its WUP application should be approved. See Dept. of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778, 787-89 (Fla. 1st DCA 1981).
The District does not have a formal burden of production in this case, as the parties seem to believe.19 The discussion in J.W.C. Co. regarding the shifting of the burdens of production was in the context of a third-party challenge to an agency’s notice of intent to approve a permit.
The court’s discussion of the shifting burdens of production was based upon the “general proposition” that:
a party should be able to anticipate that when agency employees or officials having special knowledge or expertise in the filed accept data and information supplied by the application, the same data and information, when properly identified and authenticated as accurate and reliable by agency or other
witnesses, will be readily accepted by the hearing officer, in the absence of evidence showing its inaccuracy or unreliability.
J.W.C. Co., 396 So. 2d at 789. However, this “general proposition” is not applicable in this case because the information presented by the City during the free-form permit review process was not sufficient to convince the District to issue the permit that the City wanted.
That said, it is not enough for the District to simply say that the information provided by the City is insufficient to meet the permitting requirements; it must demonstrate the inadequacy of the information, either through cross-examination of the City’s witnesses or through the presentation of its own evidence.
The City must provide “reasonable assurances” that the proposed withdrawals will not violate the applicable statutes and rules. This standard does not require the City to
provide absolute guarantees, nor does it require the City to eliminate all speculation concerning what might occur if the requested withdrawals are authorized; instead, the City is only required to establish a "substantial likelihood that the project will be successfully implemented." See, e.g., Metro Dade County v. Coscan Florida, Inc., 609 So. 2d 644, 648 (Fla. 3d DCA 1992); Blanco v. Southwest Fla. Water Management Dist., Case No. 05-
3274, 2006 Fla. Div. Adm. Hear. LEXIS 144, at ¶ 102 (DOAH Apr.
10, 2006; SWFWMD May 30, 2006), aff’d, 955 So. 2d 573 (Fla. 2d
DCA 2007) (table).
In evaluating whether reasonable assurances have been provided, it is appropriate to look at the totality of the circumstances. See Booker Creek Preservation, Inc. v. Mobil Chemical Co., 481 So. 2d 10, 13 (Fla. 1st DCA 1986). A future monitoring requirement is a factor that can be considered in determining whether reasonable assurances have been provided. See Metropolitan Dade County, 609 So. 2d at 648.
Section 373.223(1), Florida Statutes, requires the applicant for a WUP to establish that the proposed water use:
Is a reasonable-beneficial use as defined in s. 373.019;
Will not interfere with any presently existing legal use of water; and
Is consistent with the public interest.
Section 373.019(16), Florida Statutes, defines “reasonable-beneficial use” to mean “the use of water in such quantity as is necessary for economic and efficient utilization for a purpose and manner which is both reasonable and consistent with the public interest.”
The rules adopted by the District to implement Section 373.223(1), Florida Statutes, are codified in Florida Administrative Code Rule Chapter 40D-2. The BOR, which is incorporated by reference in Florida Administrative Code Rule
40D-2.091, contains additional standards and guidance for the District’s review of WUP applications.
A six-year permit is appropriate in this case. See
Fla. Admin. Code R. 40D-2.321(2)(b); BOR § 1.9. The City failed to demonstrate that a permit with a longer duration is appropriate under the circumstances of this case.
The "conditions for issuance of permits" in Florida Administrative Code Rule 40D-2.301 provides in pertinent part:
In order to obtain a Water Use Permit, an Applicant must . . . provide reasonable assurances, on both an individual and cumulative basis that the water use:
Is necessary to fulfill a certain reasonable demand;
Will not cause quantity or quality changes which adversely impact the water resources, including both surface and ground waters;
Will not cause adverse environmental impacts to wetlands, lakes, streams, estuaries, fish and wildlife, or other natural resources;
Will comply with the provision of 4.3 of the Basis of Review [concerning minimum flows and levels] . . .;
Will utilize the lowest water quality that the Applicant has the ability to use;
Will not significantly induce saline water intrusion;
Will not cause pollution of the aquifer;
Will not adversely impact offsite land uses existing at the time of the application;
Will not adversely impact an existing legal withdrawal;
Will incorporate water conservation measures;
Will incorporate reuse measures to the greatest extent practicable;
Will not cause water to go to waste; and
Will not otherwise be harmful to the water resources within the District.
Compliance with these “conditions for issuance” provides reasonable assurance of compliance with the standards in Section 373.223(1), Florida Statutes.
With respect to paragraph (a) of the rule (and BOR Sections 3.6 and 4.1), the City failed to establish that the requested 36.8 mgd in 2018 is necessary to fulfill a reasonably certain demand. Rather, the more persuasive evidence supports a demand for 29.5 mgd in 2014, and a demand for 30.9 mgd in 2018. Those amounts reflect the “demand that is supported by adequate documentation.” See BOR § 4.1 (“Only the portion of demand that is supported by adequate documentation will be permitted.”).
With respect to paragraph (b) of the rule, the more persuasive evidence establishes that with a 4.0 mgd limit on withdrawals from the NEWF, the proposed use will not adversely
impact water quality or quantity in the surficial aquifer or the UFA. Specifically, the evidence establishes that the NEWF is not as “leaky” as the District contends; that pumping of the UFA at the NEWF a rate of 4.0 mgd is not likely to adversely affect the water levels in the surficial aquifer or the wetlands at the NEWF; and that the EMMP appropriately requires continued monitoring of the water levels and the wetlands at the NEWF.
With respect to paragraph (c) of the rule (and Section 4.2 of the BOR), the more persuasive evidence establishes that with a 4.0 mgd limit on withdrawals from the NEWF, the proposed use will not adversely affect wetlands or other natural resources. The degraded condition of the wetlands at the NEWF is a result of the historical drainage features on the site, not the 4.0 mgd of pumping that started at the NEWF in October 2005, and continued pumping at that rate will not further degrade the wetlands. Moreover, any additional impacts from the continuation of pumping at that rate will likely be offset by the implementation of the WIP proposed by the City.
With respect to paragraph (d) of the rule (and Section 4.3 of the BOR), the more persuasive evidence establishes that with a 4.0 mgd limit on withdrawals from the NEWF, the proposed use will not adversely impact any water bodies for which MFLs have been established. The City’s modeling showed an inconsequential impact on the water bodies in
the vicinity of the NWWF and the NEWF that have designated MFLs, and the City has agreed to include those water bodies in its EMMP.
With respect to paragraph (e) of the rule (and Section 4.4 of the BOR), the more persuasive evidence establishes that the proposed withdrawals from the UFA are the lowest quality water that the City can technically and economically use, and it was stipulated that the proposed use incorporates the use of alternative water supplies to the greatest extent practicable. It would be cost-prohibitive for the City to use other types of water (e.g., brackish water) to provide potable water to the customers of its water utility.
With respect to paragraph (f) of the rule (and Section 4.5 of the BOR), it was stipulated that the proposed use will not significantly induce saline water intrusion.
With respect to paragraph (g) of the rule (and Section 4.6 of the BOR), the more persuasive evidence establishes that with a 4.0 mgd limit on withdrawals from the NEWF, the proposed use will not cause pollution of the aquifer. The City’s modeling shows that the proposed pumping is not likely to have any measurable impact on the contaminated sites listed by DEP in the vicinity of the wellfields and there is no evidence that the pumping will cause the contamination from any of those sites to reach the aquifer.
With respect to paragraphs (h) and (i) of the rule (and Section 4.8 of the BOR), the more persuasive evidence establishes that with a 4.0 mgd limit on withdrawals from the NEWF, the proposed use will not adversely impact offsite land uses or existing legal users. There is no credible evidence that the existing pumping at the NWWF or NEWF has caused adverse impacts to offsite land uses or existing legal users, and the draft permit attached to the District’s PRO includes adequate mitigation measures in the event that such impacts occur.
With respect to paragraphs (j) and (k) of the rule (and Sections 4.10 and 4.11 of the BOR), the more persuasive evidence establishes that the City currently implements various conservation measures, including reuse of treated wastewater for cooling at its power plant, but that the City has not recently explored whether it can do more reuse. A condition requiring the City to study other potential conservation and reuse opportunities should satisfy the District’s concerns that the City is not doing enough conservation and reuse, and also satisfy the applicable regulatory criteria.
With respect to paragraph (l) of the rule (and Section 4.12 of the BOR), it was stipulated that the proposed use will not cause water to go to waste.
With respect to paragraph (m) of the rule (and Section 4.13 of the BOR), the more persuasive evidence
establishes that with a 4.0 mgd limit on withdrawals from the NEWF, the proposed use will not “otherwise be harmful” to the water resources within the District. This paragraph is a “catch-all” provision, which encompasses issues that are not listed in the other paragraphs of the rule. No such issues are present in this case.
On balance, the City met its burden to provide reasonable assurances for 4.0 mgd of withdrawals from the NEWF. That is the quantity currently being pumped from the NEWF, and the more persuasive evidence establishes that level of pumping is not adversely affecting the onsite wetlands such that a limitation of pumping to 1.5 mgd (as proposed by the District) is warranted. Moreover, any impacts to the onsite wetlands resulting from the pumping should be adequately mitigated by the WIP, which, if properly implemented, is expected to restore and enhance the functioning of the wetlands.
The more persuasive evidence establishes that the EMMP proposed by the City, in conjunction with the other monitoring conditions in the draft permit attached to the District’s PRO satisfy the requirements of Sections 5.1 through
5.8 of the BOR. The extensive monitoring required by the EMMP will provide the District sufficient data to assess the impacts of the City’s pumping from the NEWF (and the NWWF) and to take
appropriate action if the impacts are greater than expected. See Fla. Admin. Code R. 40D-2.381(2)(b).
The City did not provide reasonable assurances for the requested 8.77 mgd of withdrawals from the NEWF. Even though the evidence supported the City’s position that the aquifer underlying the NEWF is not as “leaky” as the Disrict contends, the evidence failed to establish that the predicted drawdowns resulting from pumping the NEWF at a level of 8.77 mgd would not cause unacceptable adverse impacts, even with the mitigation proposed in the WIP.
In sum, the City provided the requisite reasonable assurances for a six-year WUP with a total allocation of 29.5 mgd, including 4.0 mgd from the NEWF, subject the EMMP and WIP attached to the City’s PRO and the other conditions included in the draft permit attached to the District’s PRO.
Based upon the foregoing findings of fact and conclusions of law, it is
RECOMMENDED that the District issue WUP No. 2004912.006 with the terms and conditions contained in the draft permit attached to the District’s PRO, except that:
The 2014 population referenced in the permit shall be 191,208;
The adjusted gross per capita rate shall not exceed 150 gallons per day;
Special Condition No. 2 shall be amended to authorize withdrawals from the NEWF at 4.0 mgd annual average and 4.8 mgd peak month, and the quantities listed in the Withdrawal Point Table for the NEWF wells shall be adjusted accordingly;
Special Condition No. 4 shall be replaced with a reference to the EMMP and the conceptual WIP attached to the City’s PRO, and the list of monitoring stations in the EMMP shall be amended to include Lake Bonny and Lake Bonnet; and
An additional specific condition shall be added encouraging the City to pursue a WUP for the Combee site for future water needs and/or for additional mitigation of the impacts of pumping at the NEWF.
DONE AND ENTERED this 4th day of January, 2008, in
Tallahassee, Leon County, Florida.
S
T. KENT WETHERELL, II Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 4th day of January, 2008.
ENDNOTES
1/ All statutory references in this Recommended Order are to the 2006 version of the Florida Statutes. See Joint Prehearing Stipulation, at 47 (“The parties agree that the statutes and rules in effect at the time that the Petition for Administrative Hearing was forwarded to the Division of Administrative Hearings (January 30, 2007) apply to the Petitioner’s Water Use Permit application.”).
2/ See City Exhibits 1(a)(1) through 1(a)(74) and 1(b)(1) through 1(b)(3). See also Order to Show Cause entered on October 18, 2007 (referencing the 4,800 page permit file compiled by the District).
3/ The record supports this characterization of the proposed permit. See, e.g., City Exhibits 1(a)(61), 1(a)(64), 1(a)(65),
1(a)(68), 1(a)(73), and 1(a)(74); Transcript, at 1236-42. As a result, very little weight has been given to the findings in the proposed permit, the "routing sheet" prepared by District staff recommending approval of the proposed permit (City Exhibit 170), or the staff summary of the proposed permit presented to the Governing Board (City Exhibit 1(b)(2), at 2396).
4/ These figures reflect average annual withdrawals. The maximum peak month withdrawals authorized by the proposed permit were 42.036 mgd total and 4.8 mgd from the NEWF.
5/ City Exhibit 1(b)(3) indicates that the Governing Board approved the proposed permit on January 30, 2007, but it was represented at the final hearing that the permit actually did not come before the board as a result of the petition filed by the City.
6/ See BOR § 4.2.A.2.b. But cf. District Exhibit 32A (e-mail written by Joe Oros, the lead permit reviewer for the District, which described the extent of his work on the City’s permit application and stated that “the goal of reducing pumpage from the [NEWF] and protecting the ‘Green Swamp’ will be achieved”).
7/ In making this finding, the undersigned did not overlook the testimony of the District witnesses suggesting that the
extensive history of phosphate mining in Polk County and, particularly, the Teneroc mine in close proximity to the NEWF also contributed to the degraded condition of the wetlands at the NEWF. The undersigned did not find that testimony persuasive because, among other reasons, there is no evidence that the condition of the wetlands has materially improved since mining at the Teneroc mine ended more than 30 years ago.
8/ The City stated in its PRO (at paragraph 235) that it “is prepared to collect any supplemental site-specific data needed to finalize the technical parameters of the [WIP], and to apply to the District for an ERP permit if it is determined that one is required before the City can implement the [WIP].”
9/ The March 2003 BOR was received into evidence as District Exhibit 3.
10/ The letter also states that “[s]ince the APT did not provide usable aquifer parameters, pumpage from the [NEWF] is not authorized.” See City Exhibit 31, at 0004. However, there is no evidence that the District ever took formal action to modify the 1993 WUP or to stop the City from pumping at the NEWF pursuant to the authorization in the WUP. See also City Exhibit 1(a)(37) (authorizing the City to use water from the NEWF at the existing permitted quantities for the start-up and performance testing of Combee).
11/ In making this finding, the undersigned did not overlook the “rate of decline” analyses prepared by District witnesses
Dr. Brian Ormiston and Dr. Scott Emery. However, as to
Dr. Ormiston’s analysis, the undersigned was not persuaded that the sites he compared to the NEWF site were indeed comparable, and as to Dr. Emery’s analysis, the undersigned was not persuaded that the results of his analysis were statistically significant.
12/ In making this finding, the undersigned did not overlook Mr. Emery’s deposition testimony that 0.5 to 0.8 foot of drawdown at the NEWF would be permittable, with mitigation. However, Mr. Emery credibly testified at the final hearing that he modified his opinion after getting additional information about the current condition of the wetlands, including the normal pool levels that showed that the wetlands were in worse condition than he previously believed.
13/ The functional population takes into account the permanent population as well as temporary populations, such as seasonal residents, tourists, and commuters. See BOR § 3.6, at B3-25 through B3-27.
14/ Compare City Exhibit 1(a)(2), at 0036 (Table 2-3 of the WUP application, column titled “population served”) with City Exhibit 140, at 0077 (“historical estimates” column from the March 2007 report).
15/ In making this finding, the undersigned did not overlook the testimony of City witnesses Mary Hayes and Dr. David Depew that the revised population projections do not “double count” the population related to the new development. However, the undersigned did not find that testimony persuasive.
16/ In making this finding, the undersigned did not overlook the fact that the proposed permit states that an allocation of 35.03 mgd is necessary to serve a population of 232,003 in 2013.
However, it is clear from the record as a whole that the proposed permit is not an admission by the District that the
35.03 mgd allocation is reasonable and necessary or that the service area’s population will be 232,003 in 2013. See Endnote
3 and accompanying text. Indeed, by filing a petition challenging the proposed permit, the City assumed the burden of proving its entitlement to the entire 36.8 mgd it is seeking, and not just the incremental difference between the 35.03 mgd in the proposed permit and the 36.8 mgd.
17/ These figures were inferred from the contour maps in City Exhibits 108 and 110.
18/ Section 3.6 of the BOR (page B3-23) allows significant users to be deducted only if they are accounted for in a conservation plan developed for the significant users and if a water survey has been performed for each user that is deducted. The June 1998 conservation plan submitted by the City with its permit application -– City Exhibit 1(a)(2), at 0142-0196 -- does not appear to meet the requirements of the BOR. The record does not reflect whether there is a more current plan that does meet the requirements of the BOR. See Transcript, at 1883-84.
19 See City’s PRO, at ¶ 296 (“If the City makes a prima facie showing of reasonable assurances, the burden of going forward with the evidence shifts to the District to present evidence of equivalent quality. The District cannot carry this burden by
presenting contrary evidence by mer speculation concerning what ‘might’ occur.” (Citations omitted)); District’s PRO, at ¶ 277 (“If the City satisfies its prima facie case of entitlement to the permit requested, then the burden of presenting evidence challenging this showing shifts to the District to refute the City’s evidence.”).
COPIES FURNISHED:
David L. Moore, Executive Director Southwest Florida Water Management District 2379 Broad Street
Brooksville, Florida 34604-6899
Segundo J. Fernandez, Esquire
Oertel, Hoffman, Fernandez & Cole, P.A.
301 South Bronough Street, Fifth Floor Post Office Box 1110
Tallahassee, Florida 32302-1110
Joseph J. Ward, Esquire
Southwest Florida Water Management District 2379 Broad Street
Brooksville, Florida 34604
Dominick J. Graziano, Esquire Bush, Graziano & Rice, P.A. Post Office Box 3423
Tampa, Florida 33601-3423
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 26, 2008 | Agency Final Order | |
| Jan. 04, 2008 | Recommended Order | Petitioner provided reasonable assurances for a water use permit through 2014 with total allocations of 29.5 mgd, with 4.0 mgd from the City`s Northeast Wellfield. The evidence did not support its request for 36.8 mgd or 8.77 mgd from Northeast Wellfield. |
