STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RESPONSIBLE GROWTH MANAGEMENT ) COALITION, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 90-7659GM

) LEE COUNTY and DEPARTMENT OF ) COMMUNITY AFFAIRS, )

)

Respondents. )

)

FINAL ORDER

On July 2, 1991, a formal administrative hearing was held in this case in Fort Myers, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Thomas W. Reese, Esquire

123 Eighth Street North

St. Petersburg, Florida 33701

For Respondent: Gregory S. Hagen, Esquire (Lee County) Lee County Attorny's Office

Post Office Box 398

Fort Myers, Florida 33902-0398

For Respondent: Michael P. Donaldson, Esquire (DCA) Department of Community Affairs

2740 Centerview Drive

Tallahassee, Florida 32399-2100 STATEMENT OF THE ISSUES

At issue in this case is the Petitioner's challenge to Lee County land development regulations (LDRs), specifically Lee County Ordinance No. 89-30, as amended by Ordinance No. 90-40 and Ordinance No. 90-46, collectively referred to as the Wellfield Protection Ordinance (WPO), 1/ under Section 163.3213, Fla.

Stat. (1989). The Petitioner in this case contends that, in several respects, the WPO is not consistent with the Lee County comprehensive plan: first, in that the LDRs extend the protections of the (WPO) only to wellfields permitted to pump a million gallons a day (MGD), or more; second, in that the WPO provides for a process to exempt from the protections of the WPO certain existing or proposed public and quasi-public land uses and activities found to serve a public need which overrides the intent and purpose of the WPO upon a finding that it would be "economically impractical or scientifically impossible" for the land use or activity either to comply with the requirements of the WPO or to be

relocated to an area outside the protection zones of the WPO; and, third, in that various sources of ground water pollution sources allegedly are unregulated or inadequately regulated.

PRELIMINARY STATEMENT

This case commenced in the Division of Administrative Hearings with the filing on December 3, 1990, of a Petition for Hearing Concerning Consistency of Lee County Wellfield Protection Ordinance with Lee County's Comprehensive Land Use Plan by the Responsible Growth Management Coalition, Inc. (the Petitioner). 2/ It was assigned to a hearing officer and scheduled for final hearing on May

15 and 16, 1991. Later, Lee County's Motion for Order Staying Proceedings 3/ was denied, but the County's unopposed Motion for Continuance was granted, and final hearing was continued to July 2 and 3, 1991.

At the final hearing, the Petitioner had Petitioner's Exhibits 1 through 12 admitted in evidence and presented the testimony of four witnesses, two of whom were adverse County witnesses. Lee County recalled those two witnesses in its case-in-chief and had County Exhibits 1 and 2 admitted in evidence. The Department of Community Affairs (DCA) presented no evidence.

At the conclusion of the final hearing, the County ordered the preparation of a transcript of the final hearing, and the parties were given ten days from the filing of the transcript in which to file proposed final orders. The transcript was filed on August 9, 1991, making proposed final orders due August 19, 1991. However, the DCA filed an Amended Request for Extension of Time to File Proposed Final Order to August 28, 1991. 4/ Explicit rulings on proposed findings of fact contained in the parties' proposed final orders may be found in the attached Appendix to Final Order, Case No. 90-7659GM.

FINDINGS OF FACT

1. The Petitioner, Responsible Growth Management, Inc., is a not-for- profit corporation conceived and organized for the purpose of monitoring local governments within the geographic boundaries of Lee County for compliance with the requirements of the Florida Growth Management Act. Its members are residents of Lee County. Some of its members obtain their potable water from sources protected by Lee County Ordinance No. 89-30, as amended by Ordinance 90-

   40 and 90-46, collectively referred to as the Wellfield Protection Ordinance (WPO). Other members obtain their potable water from sources the Petitioner contends are not protected by the WPO. The Petitioner contends that, for several reasons, the WPO is not consistent with the Lee County comprehensive plan.

   The Lee Plan

   
   

2. Goal 41 of the Lee County comprehensive plan (the Lee Plan) provides in pertinent part:

   
   

   GOAL 41: GROUNDWATER.

   
   

   To protect the county's groundwater supplies from those activites having the potential for depleting or degrading those supplies.

   
   

   OBJECTIVE 41.1: WELLFIELD PROTECTION.

   
   

   By 1990 the county shall adopt a wellfield protection ordinance to provide regulations protecting the quality of water flowing into potable water wellfields.

   
   

   POLICY 41.1.1:

   
   

   The proposed wellfield protection ordinance shall be based on reliable technical data to ensure that adequate protection is provided.

   
   

   POLICY 41.1.2:

   
   

   The wellfield protection ordinance shall be amended whenever better technical data is developed and whenever additional potable wellfields are proposed.

   
   

   POLICY 41.1.3:

   
   

   The staff hydrogeologist shall review and comment on all development applications near public utility potable water wellfields, with particular attention to proposed land uses within a 10-year travel time from the well- heads.

   
   

3. Goal 85 of the Lee Plan provides:

   
   

   GOAL 85: WATER QUALITY AND WASTEWATER.

   
   

   To ensure that water quality is maintained or improved for the protection of the environ- ment and people of Lee County.

   
   

   OBJECTIVE 85.1:

   
   

   Maintain high water quality, meeting or ex- ceeding state and federal water quality standards.

   POLICY 85.1.1:

   
   

   Sources of water pollution shall be identi- fied, controlled, and eliminated wherever feasible.

   
   

   POLICY 85.1.2:

   
   

   New development and additions to existing development shall not degrade surface and ground water quality.

   
   

   POLICY 85.1.3:

   
   

   The design, construction, and maintenance of artifical drainage systems shall provide for retention or detention areas and vegetated swale systems that minimize nutrient loading and pollution of freshwater and estuarine systems.

   
   

   POLICY 85.1.4:

   
   

   Developments which have the potential of lower- ing existing water quality below state and federal water quality standards shall provide standardized appropriate monitoring data.

   
   

   POLICY 85.1.5:

   
   

   New developments shall demonstrate compliance with all applicable federal, state, and local water quality standards.

   
   

   POLICY 85.1.6:

   
   

   No garbage or untreated sewage shall be dis- charged into coastal and interior surface waters.

   
   

   POLICY 85.1.7:

   
   

   The county shall initiate a wellfield protec- tion program to prevent the contamination of shallow wells by pollutant generating develop- ment including surface water runoff

   (see Goal 41).

   
   

   POLICY 85.1.8:

   
   

   Valid permits and inspection shall be required prior and subsequent to drilling operations for wells, elevator shafts, foundation holes, and test borings.

   POLICY 85.1.9:

   
   

   The county shall participate in a program to plug improperly constructed wells which are detrimental to ground water resources.

   
   

4. Goal 87 of the Lee Plan provides in pertinent part: GOAL 87: WATER RESOURCES.

   To conserve, manage, protect, and improve the natural hydrologic system of Lee County to insure continued water resource availability.

   
   

   OBJECTIVE 87.1: WATER SUPPLIES.

   
   

   Insure water supplies of sufficient quantity and quality to meet the present and projected demands of all consumers and the environment, based on the capacity of the natural systems.

   
   

   POLICY 87.1.1:

   
   

   Natural water system features which are essen- tial for retention, detention, purification, runoff, recharge, and maintenence of stream flows and groundwater levels shall be iden- tified, protected, and managed.

   
   

   POLICY 87.1.2:

   
   

   The county shall recognize and encourage water and wastewater management, provided that such management does not exceed the natural assimi- lative capacity of the environment or appli- cable health standards. Appropriate water and wastewater management includes, but is not limited to, groundwater and aquifer recharge, spray or drip irrigation, gray-water systems, agricultural production, and other recycling techniques.

   
   

   POLICY 87.1.3:

   
   

   Freshwater resources shall be managed in order to maintain adequate freshwater supplies during dry periods and to conserve water.

   
   

   POLICY 87.1.4:

   
   

   Development designs shall provide for maintain- ing surface water flows, groundwater levels,

   and lake levels at or above existing conditions.

   POLICY 87.1.5:

   
   

   The county shall cooperate with the United States Geological Survey, South Florida Water Management District, and state agencies to develop an area-wide water resources plan emphasizing planning and management of water resources on the basis of drainage basins; and addressing the needs of the existing and potential built environment, natural hydro-

   logic system requirements, and freshwater flow impacts on estuarine systems.

   
   

   POLICY 87.1.6:

   
   

   The county shall continue to support a moni- toring program of existing baseline conditions of water resources.

   
   

   POLICY 87.1.7:

   
   

   The county shall cooperate fully with emer- gency water conservation measures of the South Florida Water Management District.

   
   

   The WPO

   
   

5. Lee County Ordinance 89-30 provides for potable water wellfield protection. It establishes wellfield protection zones and sets out a protection zone map:

   
   

   showing the location on the ground of the outer limits of protection zones for present public utility potable water supply wells and wellfields which are permitted to pump 1,000,000 gallons of water per day or more.

   The Florida Cities-Waterway Estates Wellfield shall not be included within the protections established by this ordinance or depicted on the Protection Zone Maps.

   
   

   Chapter 10 of the ordinance is a "sunset provision" confirming that the ordinance was adopted "for the purpose of providing interim protection to existing potable water wellfields which are permitted to pump one million gallons of water or more per day" and explaining:

   
   

   The County is engaged in the creation of a Raw Water Management Authority to insure the protection of the public potable water supply. Potable water wellfields make up a portion of the available public potable water supply.

   In adopting this ordinace, the Board has taken the first step toward creating such an author- ity and providing an overall program for the protection of the public water supply. The wellfield protection ordinance is conceived as a part of that program.

   In order to insure that the wellfield protec- tion efforts of the County are incorporated into any overall program to protect the public potable water supply this ordinance shall expire and be of no further force and effect as to any acts occurring on or after

   September 1, 1991.

   
   

   The data and analysis supporting the Lee Plan clearly was based on the assumption of a 1 MGD threshhold. 5/

   
   

6. Section 4.05 of the Ordinance provides:

   
   

   Certain existing or proposed public and quasi-public land uses and activities may be declared exempt from the provisions of this Ordinance by the Board of County Commission- ers. This exemption shall be granted only upon a finding made by the Board in a public meeting that the existing or proposed land use or activity serves a public need which overrides the intent and purpose of this Ordinance and that it would be economically impractical or scientifically impossible for the land use or activity to comply with the requirements of this Ordinance or be relo- cated to an area outside of the protection zones established by this Ordinance. When declaring such an exemption, the Board of County Commissioners shall limit it to the extent necessary to enable the existing or proposed public or quasi-public land use or

   activity in question to be conducted within a protection zone while still serving the intent and prupose of this Ordinance to the extent which is economically practical and scientifi- cally possible. The Board may attach any con- ditions to the grant of any exemption that it deems appropriate.

   
   

7. Section 3.01 of the Ordinance states:

   
   

   Four types of Protection Zone[s] have been established using scientific criteria relating to the physical characteristics of the water supply aquifer and the transport gradients caused by either natural forces or induced pumpage of the wellfields (see Appendix A)." The transport times associated with the Pro- tection Zones are designed so as to allow adequate time to carry out mitigating proce- dures to prevent wellfield contamination in the event of spillage of any Regulated Substance.

   Section 3.01.A. establishes and defines Protection Zone 1 as: "All land situated between the well(s) and the water table aquifer 6-month travel time zone demarcation." Section 3.01.B. establishes and defines Protection Zone 2 as: "All land situated between the well(s) and the planar geometric union of the largest of the following three travel time zones:

   
   

   1. Water table aquifer 1-year travel time zone demarcation.

   2. Lower Tamiami 1-year travel time zone demarcation.

   3. Sandstone 1-year travel time zone demarcation.

      
      

      Section 3.01.C. establishes and defines Protection Zone 3 as: "All land situated between the well(s) and the planar geometric union of the largest of the following three travel time zones:

      
      

      1. Water table 1-year travel time zone demar- cation and the water table aquifer 5-year travel time zone demarcation.

      2. Sandstone aquifer 1-year travel time zone demarcation and the Sandstone aquifer 5-year travel time zone demarcation.

      3. Lower Tamiami 1-year travel time zone demarcation and the Lower Tamiami 5-year travel time zone demarcation.

      
      

      Section 3.01.D. establishes and defines Protection Zone 4 as: "All land situated between the well(s) and the planar geometric union of the largest of the following three travel time zones:

      
      

      1. Water table 5-year travel time zone demar- cation and the water table 10-year travel time zone demarcation.

      2. Sandstone 5-year travel time zone demarca- tion and the Sandstone 10-year travel time zone demarcation.

      3. Lower Tamiami 5-year travel time zone demar- cation and the Lower Tamiami 10-year travel time zone demarcation.

      
      

      Section 3.02.B. of the Ordinance provides essentially that, where the location of property and buildings is within more than one protection zone, the most restrictive protective zone applies.

      
      

8. Section 4.04 of the Ordinance prohibits liquid waste and solid waste disposal in Protection Zones 1, 2, and 3. In those zones, it also prohibits wastewater effluent disposal, except for public access reuse of reclaimed water and land application (under the conditions set forth and as defined in Chapter 17-610, Part III, F.A.C.). As for the exception, it provides: "Where public access reuse is permitted the chloride content shall be no greater than 500 mg/l." In Protection Zones 1 and 2, it also prohibits "the use handling, production, or storage of Regulated Substances [defined in Section 4.03 of the Ordinance] associated with land uses or activities regulated by this Ordinance in quantities greater than those set forth in Section 4.02.A." and "[e]arth mining within a five hundred foot (500') radius of an existing wellhead." The only prohibition in Protection Zone 4 is against "any activity regulated by this

   ordinance which stores, handles, uses, or produces any Regulated Substance, in quantities greater than those set forth in Section 4.02.A., which does not obtain a valid operation permit as set forth in Section 6.02." Thus, the Ordinance does not by its terms prohibit landfills, sludge disposal or rapid rate percolation ponds in Zone 4.

   
   

9. Section 4.03 of the Ordinance, entitled "Regulated Hazardous or Toxic Substances," defines regulated substances in part in terms of federal and state regulations that are referenced, but not reproduced, in the ordinance.

   
   

10. Section 4.02 of the Ordinance provides that it applies only to a particular land use or activity, whether that land use or activity is classified as a residential or commercial use, when either the aggregate sum of all quantities of any one Regulated Substance, or the aggregate sum of all Regulated Substances, on a given parcel or in a certain building exceeds one hundred and ten (110) gallons if the substance is liquid, or one thousand, one hundred and ten (1,110) pounds if said substance is solid. It also provides that the Ordinance applies to all storage facilities for petroleum products which are not regulated by Section 376.317, Florida Statutes, or Chapter 17-61, Florida Administrative Code.

    
    

11. Section 4.04 of the Ordinance also provides that, within the protection zones: "Any stormwater or surface water discharge . . . shall conform to existing S.F.W.M.D. and F.D.E.R. rules or as they may be amended or replaced."

    
    

12. Under Section 4.04 of the Ordinance, "partially treated sewage from residential septic tank systems" are not regulated in any of the protection zones.

    
    

13. Section 4.05.B.5. of the Ordinance provides an: Exemption for Retail Sales Activities.

    Retail sales establishments that store and handle Regulated Substances for resale in their original unopened containers shall be exempt from the prohibition in Sub-Sections

    4.04.A.1. and 2. provided that those estab- lishments obtain an Operating Permit pursuant to Section 6.02. No operating permit is re- quired in Protection Zones 3 and 4.

    
    

    Other Relevant Facts

    
    

    1. The WPO's Coverage.

       
       

14. The support documentation in support of the Lee Plan was based on the assumption of a 1 MGD threshhold. The evidence as a whole does not suggest that was it contemplated at any time prior to adoption that the Lee Plan would require a wellfield protection ordinance that protects all potable water wellfields. 6/

    
    

15. Although the documentation in support of the Lee Plan focuses on wellfields permitted to pump 1 MGD or more and serves an indication that the Lee Plan does not require all potable wellfields to be covered by a protection

    ordinance, nothing in the Lee Plan or the supporting documentation establishes a clear intention to require the same protections for all wellfields permitted to pump 1 MGD or more.

    
    

16. The focus of the WPO is on the protection of wellfields from contamination from the ground surface. Two wellfields permitted to pump more than 1 MGD are not covered by those protections. They pump from deep aquifers. The confining layers above those aquifers protect them from contamination from the ground surface. Other parts of the WPO, and other regulatory programs, require that abandoned wells that could possibly serve as a conduit for contamination into those aquifers be properly grouted so as to prevent contamination from the ground surface. As a result, they are adequately protected. 7/

    
    

17. The Florida Cities-Waterway Estates wellfield pumps from both the surficial aquifer and from a deeper aquifer known as the mid-Hawthorn. The confining layers above the mid-Hawthorn aquifer protect it from contamination from the ground surface. Other parts of the WPO, and other regulatory programs, require that abandoned wells that could possibly serve as a conduit for contamination into the mid-Hawthorn be properly grouted so as to prevent contamination from the ground surface. As for the wells pumping from the surficial aquifer, no party presented evidence on which findings of fact can be made on the issue whether it is fairly debatable to exclude the Florida Cities- Waterways wellfield from the WPO's protections against contamination from the ground surface. There was no evidence on which a finding can be made as to why they were excluded from the greater protections the WPO affords to other wellfields permitted to pump 1 MGD or more. 8/

    
    

18. The evidence was that 90% to 95% of Lee County's potable water supply is either covered by the WPO, with its 1 MGD threshhold and exclusion of the Florida Cities-Waterway Estates wellfield, or pumps from deep aquifers that do not need the WPO's protections from contamination from the ground surface.

    
    

19. The Department of Environmental Regulation's so-called G regulations adopted in 1986 utilize a 100,000 gallon a day threshhold for coverage. This threshhold was selected to coincide with the jurisdiction of, and to extend coverage to all wells requiring a permit from, Florida's water management districts. The G-I regulations were successfully challenged and still are not in effect.

    
    

20. The federal Environmental Protection Agency recently has criticized the G

    
    

21. Although it is written in general terms to leave open the possibility of other similar applications, the evidence reflects that the primary purpose of the Section 4.05 exemption for "certain existing or proposed public and quasi- public land uses and activities" is to acknowledge and permit consideration to be given to the practical impact of possible future expansion of the regional airport located in Lee County. Since there are wellfields in the vicinity that possibly could be impacted by such an expansion, the exemption acknowledges that it might be more sensible, feasible, practical and economical to replace the wellfields than to move the regional airport. If this happens and, on a case- by-case basis, the County utililizes the exemption provision, it may be necessary to phase out the wellfields and to allow some degradation of parts of the wellfield, subject to close monitoring pending complete replacement of the wellfields.

    1. Alleged Inadequate Regulation of Pollution Sources.

       
       

22. Rock and sand mine operations, which are prohibited within 500' of a wellhead, create open, water-filled holes in the ground. As the Petitioner correctly points out, mining operations can thereby create direct conduits that can lead contaminants to underlying aquifers. But there is evidence in the record to justify the WPO's treatment of rock and sand mines on several bases: first, these mines are regulated on a case-by-case basis through a permitting process; second, mines that have been permitted are relatively shallow and reach into, but do not penetrate, the layer confining the aquifers in the vicinity of the mines that are sources of potable water; third, the County has required as a condition of these permits that the pits be prohibited from serving as storm water retention ponds in the future so as to prevent contaminants from gaining entry to the potential conduit; and, finally, the evidence provides assurances that, even if contaminants somehow find their way into the pits, their concentrations would be low enough that sufficient "head" to penetrate the confining layers would not be generated.

    
    

23. The WPO does not prohibit "zones of discharge." A "zone of discharge" is a deliberate decision on the part of a regulatory agency to utilize a limited part of the groundwater as part of the process of diluting contaminants. There was some expert testimony that, in a general and theoretical or academic sense, the concept of a "zone of discharge" is inconsistent with wellfield protection. They are not permitted in DER's G

    
    

24. The WPO permits landfills, sludge disposal and rapid rate infiltration ponds in Protection Zone 4 (delineated by the ten-year travel time). The evidence was that landfills, at least, are subject to Department of Environmental Regulation (DER) and other regulation and permitting requirements that would provide adequate wellfield protection. There was no evidence or argument presented by any party to clarify how the other activities--sludge disposal and rapid rate infiltration ponds--are regulated. The Petitioner's evidence in general did not address the existence or absence of regulations (both County and other regulatory agencies) pertaining to the various activities of which it complains to rule out the possibility that they might meet the objectives and policies of the Lee Plan.

    
    

25. The WPO does not contain its own stormwater regulations. Instead, it provides: "Any stormwater or surface water discharge . . . shall conform to existing S.F.W.M.D. and F.D.E.R. rules or as they may be amended or replaced." The Petitioner offered, as evidence in support of its position that the DER and SFWMD stormwater regulations are inadequate, expert testimony to the effect that the DER and SFWMD regulations are "performance standards," not "directed to groundwater monitoring, and it's not quality impact related." A "performance standard" requires certain things to be done with stormwater in the expectation that groundwater contamination would be eliminated or minimized. The Petitioner's witnesses related that DER decided that "protection of public water supply has to be protected to above and beyond a performance standard" and opted for specific water quality criteria in its G-I groundwater. But nothing in the Lee Plan requires utilization of the G-I rule approach, and the Petitioner's expert did not opine that failure to do so would render the WPO inconsistent with the Lee Plan.

    
    

26. The Section 4.05.B.5 retail sales exemption presents a risk of contamination of a wellfield, but the risk is low. In all likelihood, it would take a fire or some other similar catastrophe for the possibility of actual harm to a wellfield to materialize from the small risk involved.

    1. Other County Measures Relevant to the WPO.

    
    

27. The County has several programs, other than the WPO, and in addition to the Raw Water Management Authority mentioned in the WPO, 9/ that impact wellfield protection. It has a program to encourage (and in some cases require) the reduction and elimination of the use of septic tanks and package sewage plants. It is building a new sewer district. It has taken over the from DER the function of inspecting the installation of underground storage tanks and the remediation (clean up and repair) of tanks storing liquid petroleum products in an attempt to do the job better. There also was evidence that the County has restricted density in potential future wellfield locations and their recharge areas to one unit per ten acres. (The Petitioner's own witness testified that, other than an outright ban on septic tanks, density reduction is the only way to address the problem of septic tanks.

    
    

    CONCLUSIONS OF LAW

    
    

28. Section 163.3202(1), Fla. Stat. (1989), provides that local governments, such as Lee County, must "adopt . . . land development regulations that are consistent with and implement their adopted comprehensive plan." Their land development regulations (LDRs) must, among other things: "Provide for protection of potable water wellfields." Section 163.3202(2)(c).

    
    

    Standing

    
    

29. Section 163.3213(1), Fla. Stat. (1989), provides:

    
    

    It is the intent of the Legislature that sub- stantially affected persons have the right to maintain administrative actions which assure that land development regulations implement and are consistent with the local comprehen- sive plan.

    
    

30. Section 163.3213(2)(a), Fla. Stat. (1989), provides: "'Substantially affected person' means a substantially affected person as provided pursuant to chapter 120." Although Chapter 120 does not define the term "substantially affected person," it does define "person" to include "any person described in s. 1.01 . . .." Section 120.52(13), Fla. Stat. (1989). Section 1.01(3), Fla. Stat. (1989), provides that, within the possible meanings of the word "person," when used in the Florida statutes, should be included associations, corporations, and all other groups or combinations. Section 120.52(12)(b), Fla. Stat. (1989), provides that any person "whose substantial interests will be affected by proposed agency action" may be a party to proceedings under Chapter

    120 (provided the person makes an appearance as a party.) In this case, the other parties concede, and it is clear, that the Petitioner has the right to maintain this proceeding. Cf. Matter of Surface Water Management Permit, 515 So. 2d 1288 (Fla. 4th DCA 1987).

    The Meaning of Consistency

    
    

31. F.A.C. Rule 9J-24.008 sets out "Criteria for Determining Consistency of Land Development Regulations with the Comprehensive Plan." After stating in section (1) of the rule essentially that the "[c]haracteristics of the land use and development allowed by the regulation" should be compared "to the land use and development proposed in the comprehensive plan," it provides in pertinent part that the determination of consistency will be based on:

    
    

    1. Whether the land development regulations are compatible with the comprehensive plan, further the comprehensive plan, and implement the comprehensive plan. The term "compatible" means that the land development regulations are not in conflict with the comprehensive plan. The term "further" means that the land development regulations take action in the di- rection of realizing goals or policies of the comprehensive plan.

       
       

32. In the context of determining whether a local comprehensive plan is consistent with the Growth Management Act, the court in Machado v. Musgrove, 519 So. 2d 629, 633 (Fla. 3d DCA 1987) stated:

    
    

    The word "consistent" implies the idea of ex- istence of some type or form of model, stan- dard, guideline, point, mark or measure as a norm and a comparison of items or actions against that norm. Consistency is the funda- mental relation between the norm and the com- pared item. If the compared item is in accordance with, or in agreement with, or within the parameters specified, or exempli- fied, by the norm, it is consistent with it, but if the compared item deviates or departs in any direction or degree from the parameters of the norm, the compared item or action is not "consistent" with the norm.

    1. Whether the land development regulations include provisions that implement objectives and policies of the comprehensive plan that require implementing regulations in order to be realized . . ..

    
    

33. In utilizing the Machado v. Musgrove definition of "consistency" in the context of this proceeding, it is necessary to consider the nature of the "norms" against which the WPO will be compared. To do this, one must have clearly in mind just what the various pertinent comprehensive plan provisions are designed to accomplish. Comprehensive plans include goals, objectives and policies. See F.A.C. Rule 9J-5.005(1)(c). "'Goal' means the long-term end toward which programs or activities are ultimately directed." F.A.C. Rule 9J- 5.005(36). "'Objective' means a specific, measurable, intermediate end that is achievable and marks progress toward a goal." F.A.C. Rule 9J-5.005(61). "'Policy' means the way in which programs and activities are conducted to achieve an identified goal." F.A.C. Rule 9J-5.005(68). In this scheme, rarely if ever will an LDR be found to be inconsistent with a goal for not meeting the goal. Rather, the question will be whether the LDR implements or furthers the

    goals by making progress towards achieving the goals. By definition, then, an LDR that implements or furthers the goal will be compatible with the comprehensive plan. Even as to objectives, not every LDR will be required to be sufficient, in and of itself, to meet a particular objective. Rather, an LDR can implement or further an objective, and therefore be compatible with it, if the totality of the LDRs and other programs and activities that are in place (or, if the objective requires that it be met at some future date, that may be put in place) are capable of meeting the objective. It is only the plan's policies that will mandate, in every instance, stricter and more immediate adherence in the LDRs.

    
    

    Standard of Review

    
    

34. Section 163.3213(5), Fla. Stat. (1989), states: "The adoption of a land development regulation by a local government is legislative in nature and shall not be found to be inconsistent with the local plan if it is fairly debatable that it is consistent with the plan." The fairly debatable test asks whether reasonable minds could differ as to the outcome. See Norwood-Norland Homeowners Ass'n, 511 So. 2d 1009, 1012 (Fla. 3d DCA 1987). Therefore, the precise issue in the present proceeding is whether the Petitioner has demonstrated to the exclusion of fair debate that the Lee County WPO is consistent with the Lee comprehensive plan. It would seem that the Petitioner in this case may not have fully appreciated the extent of the burden of persuasion with which it was saddled.

    
    

    Alleged Inadequate Coverage of the WPO

    
    

35. The Petitioner first complains that the WPO identifies for protection only wellfields permitted to pump one MGD or more. The Petitioner points to Objective 41.1 and the fact that it does not qualify the "potable water wellfields" to be protected with the word "major," as does F.A.C. Rule 9J- 5.003(21). The Petitioner argues that the absence of this qualification signifies that the intent of Objective 41.1 of the Lee Plan is to require a wellfield protection ordinance that protects all potable water wellfields. But there is ample evidence in the record that runs counter to the Petitioner's argument. See Finding of Fact 14., above. In any event, the question certainly is at least fairly debatable.

    
    

36. As found, DER's G

    100,000 gallons per day based on the water management districts' jurisdictional threshhold for consumptive use permits. The federal EPA has opined that the threshhold should be even lower. There certainly are valid reasons for choosing a lower threshhold. The lower the threshhold, presumably the more protection a wellfield protection ordinance will provide, all other things remaining equal.

    But the evidence did not prove any technical reason why the threshhold could not be set at 1 MGD, and the evidence as a whole leaves no doubt that the question still is the subject of debate.

    
    

37. The Petitioner also complains that the WPO excludes from some of its protections a wellfield known as the Florida Cities-Waterway Estates wellfield, which is permitted to pump more that 1 MGD. 10/

    
    

38. At the outset, it must be pointed out that, although the documentation in support of the Lee Plan focuses on wellfields permitted to pump 1 MGD or more and serves an indication that the Lee Plan does not require all potable wellfields to be covered by a protection ordinance, neither does anything in the

    Lee Plan or the supporting documentation establish a clear intention to require the same protections for all wellfields permitted to pump 1 MGD or more. The Florida Cities-Waterway Estates wellfield pumps from both the surficial aquifer and from a deeper aquifer known as the mid-Hawthorn. The confining layers above the mid-Hawthorn aquifer protect it from contamination from the ground surface. Other parts of the WPO, and other regulatory programs, require that abandoned wells that could possibly serve as a conduit for contamination into the mid- Hawthorn (and other deep aquifers) be properly grouted so as to prevent contamination from the ground surface.

    
    

39. As for the wells pumping from the surficial aquifer, no party presented evidence on which findings of fact can be made on the issue whether it is fairly debatable to exclude the Florida Cities-Waterways wellfield from the WPO's protections against contamination from the ground surface. There was no evidence on which a finding can be made as to why they were excluded from the greater protections the WPO affords to other wellfields permitted to pump 1 MGD or more. 11/ The Petitioner did not meet its burden to establish beyond fair debate that this omission makes the WPO inconsistent with the Lee Plan.

    
    

40. Next, the Petitioner contends that the Section 4.05(A) exemption in the WPO is inconsistent with the Lee Plan. As previously stated, neither the Lee Plan nor documentation in support establish a clear intention to require the same protections for all wellfields permitted to pump 1 MGD or more. See Conclusion of Law 8., above. Although it is written in general terms to leave open the possibility of other similar applications, the evidence reflects that the primary purpose of this limited exemption is to acknowledge and permit consideration to be given to the practical impact of possible future expansion of the regional airport located in Lee County. Since there are wellfields in the vicinity that possibly could be impacted by such an expansion, the exemption acknowledges that it might be more sensible, feasible, practical and economical to replace the wellfields than to move the regional airport. If this happens, it may be necessary to phase out the wellfields and to allow some degradation of parts of the wellfield, subject to close monitoring pending complete replacement of the wellfields. The Petitioner did not establish beyond fair debate that the Lee Plan prohibits the exercise of its legislative function by providing for these contingencies in the WPO.

    
    

    Alleged Non-Degradation Standard

    
    

41. The Petitioner also complains that Objective 85.1 of the Lee Plan, especially when read to be consistent with Section 187.201(8)(a), Fla. Stat. (1989), requires a wellfield protection ordinance to prohibit any degradation of water quality. The Petitioner's argument that the language of Objective 85.1 must be construed in this fashion is not persuasive. An objective to "maintain high water quality, meeting or exceeding state and federal water quality standards" also can be construed as not prohibiting any degradation, but only degradation to levels below state and federal standards.

    
    

42. Section 187.201(8)(a) does not require Objective 85.1 to be construed as the Petitioner argues it must be. Section 187.201(8)(a) states:

    
    

    (8) WATER RESOURCES.--

    (a) Goal.--Florida shall assure the availa- bility of an adequate supply of water for all competing uses deemed reasonable and benefi- cial and shall maintain the functions of natural systems and the overall present level

    of surface and ground water quality. Florida shall improve and restore the quality of waters not presently meeting water quality standards. (Emphasis added.)

    
    

    The Lee Plan could have been, and apparently was, written to require the maintainance of the overall present level of surface and ground water quality without prohibiting any and all instances of degradation.

    
    

43. In exploring the possible interpretations of Objective 85.1, the Lee Plan's adopted policies for achieving the objective also must be examined. Policies 85.1.4 and 85.1.5 would be support for the County's position that Objective 85.1 is not necessarily a non-degradation standard.

    
    

44. The WPO does not have to be any more than its title would suggest--a potable wellfield protection ordinance. It falls under the Lee Plan's Goal 41, entitled "Groundwater," and its Objective 41.1, entitled "Wellfield Protection." There is no requirement that it be able, in and of itself, to meet all of the objectives of, and strictly comply with all of the policies of, the Lee Plan. The other goals and objectives cover much broader subject matters. 12/

    
    

    Alleged Inadequate Regulation of Pollution Sources

    
    

    1. Rock and Sand Mines.--

       
       

45. One of the WPO's alleged inadequacies is that it allows rock and sand mines except within 500 feet of a wellhead. Rock and sand mine operations create open, water-filled holes in the ground. The Petitioner argues that mining operations thereby create direct conduits that can lead contaminants to underlying aquifers. But the evidence in the record justifies the WPO's treatment of rock and sand mines on several bases: first, these mines are regulated on a case-by-case basis through a permitting process; second, mines that have been permitted are relatively shallow and reach into, but do not penetrate, the layer confining the aquifers in the vicinity of the mines that are sources of potable water; third, the County has required as a condition of these permits that the pits be prohibited from serving as storm water retention ponds in the future so as to prevent contaminants from gaining entry to the potential conduit; and, finally, the evidence provides assurances that, even if contaminants somehow find their way into the pits, their concentrations would be low enough that sufficient "head" to penetrate the confining layers would not be generated.

    
    

    1. Zones of Discharge.--

       
       

46. The WPO allows landfills, sludge disposal and rapid rate filtration ponds used for disposal of treated wastewater in Protection Zone 4 (but not in Zones 1, 2 and 3). But there was evidence that these activities in Zone 4 will not jeopardize the potable water supply. The evidence was that landfills, at least, are subject to regulation and permitting that would provide adequate protection. There was no evidence or argument presented by any party to clarify how the other activities--sludge disposal and rapid rate infiltration ponds--are regulated. Other than some expert testimony that, in a general and theoretical or academic sense, the concept of a "zone of discharge" is inconsistent with wellfield protection, the Petitioner's evidence did not address the existence or absence of regulations (both County and other regulatory agencies) pertaining to the other activities that might meet the objectives and policies of the Lee Plan to rule out the possibility that they might meet the objectives and policies of

    the Lee Plan. The Petitioner's evidence was not sufficient to exclude fair debate as to the adequacy of regulations that might exist to meet the objectives and policies of the Lee Plan.

    
    

47. As found, the DER's G

    of discharge. But, as previously discussed, the ongoing debate as to the status of the G

    addressed remain open to fair debate.

    
    

48. The Petitioner contends that the WPO is inconsistent with the Lee Plan because it allows choride levels up to 500 mg/l in zones 1, 2 and 3. But, more precisely, Section 4.04 of the WPO prohibits wastewater effluent disposal in Protection Zones 1, 2, and 3, except for public access reuse of reclaimed water and land application (under the conditions set forth and as defined in Chapter 17-610, Part III, F.A.C.). It also provides: "Where public access reuse is permitted the chloride content shall be no greater than 500 mg/l." Neither the evidence presented by the parties nor their written arguments were clear as to the significance of the DER rules on public access reuse of reclaimed water and land application (F.A.C. Rule Chapter 17-610) and on drinking water standards (F.A.C. Rule Chapter 17-550). But it appears that the latter applies to the standards for drinking water "within public water systems." F.A.C. Rule 17-

    550.300. Although F.A.C. Rule 17-3.404(1)(a) incorporates the drinking water standards as the G-II water quality standards, it has not been made clear that the same standards apply to the chloride content of reclaimed water for public access reuse and land application. Even if they do, it is not clear that the WPO's 500 mg/l limitation is intended to attempt to authorize violations of

    F.A.C. Rule 17-3.404(1)(a). In any event, the Petitioner's evidence was not sufficient to establish that the 500 mg/l chloride limitation in Section 404 of the WPO renders it, beyond fair debate, inconsistent with the Lee Plan.

    
    

    1. Septic Tanks.--

       
       

49. The WPO does not prohibit septic tanks. But the County has a program to encourage (and in some cases require) reduction and elimination of the use of septic tanks. The Petitioner's evidence did not address this program. There also was evidence that the County has restricted density in potential future wellfield locations and their recharge areas to one unit per ten acres. The Petitioner's own witness testified that (other than an outright ban on septic tanks) density reduction is the only way to address the problem of septic tanks. For these reasons, the Petitioner's evidence was not sufficient to exclude fair debate as to the adequacy of regulations that might exist to meet the objectives and policies of the Lee Plan.

    
    

    1. Stormwater Regulations.--

       
       

50. The WPO does not contain its own stormwater regulations. Instead, it provides: "Any stormwater or surface water discharge . . . shall conform to existing S.F.W.M.D. and F.D.E.R. rules or as they may be amended or replaced." The Petitioner complains that the WPO does not comply with F.A.C. Rule 9J- 24.003(3) and that it does not adequately protect the wellfields.

    
    

51. F.A.C. Rule 9J-24.003(3) applies to a determination whether a local government can meet the requirement of Section 163.3202(2), Fla. Stat. (1989), that it adopt certain kinds of LDRs (including, under paragraph (c), a potable water wellfield protection LDR) by instead adopting in whole or in part the existing regulatory provisions of other agencies. If the local government so chooses, it must make specific reference to the regulations being adopted in

    lieu of an LDR, and the DCA will review the regulations adopted by reference to determine whether the local government has "totally failed" to adopt a required LDR. In this case, there is no allegation that Lee County has "totally failed" to adopt a potable water wellfield protection ordinance, and Lee County obviously has opted to adopt its own potable water wellfield protection ordinance and not utilize F.A.C. Rule 9J-24.003(3). F.A.C. Rule 9J-24.003(3) therefore has no application.

    
    

52. As to the claim that the DER and SFWMD stormwater regulations are inadequate, the only evidence the Petitioner offered in support of its position was expert testimony to the effect that the DER and SFWMD regulations were "performance standards," not "directed to groundwater monitoring, and it's not quality impact related." A "performance standard" requires certain things to be done with stormwater in the expectation that groundwater contamination would be eliminated or minimized. The Petitioner's witness related that DER decided that "protection of public water supply has to be protected to above and beyond a performance standard" and opted for specific water quality criteria in its G-I groundwater rule adopted in 1986. But nothing in the Lee Plan requires utilization of the G

    that failure to do so would render the WPO inconsistent with the Lee Plan.

    
    

    1. Retail Sales Exemption.--

    
    

53. The Petitioner cites the Section 4.05.B.5. of the WPO, providing an exemption for retail sales establishments that handle otherwise regulated substances for resale in their original unopened containers (but still requiring an operating permit in protection zones 1 and 2.) Although the evidence establishes that the exemption presents a risk, the risk is so low that it does not render the WPO inconsistent with the Lee Plan. In all likelihood, it would take a fire or some other similar catastrophe for there to be the possibility that actual harm to a wellfield would materialize from the small risk involved. The Petitioner did not prove that, beyond fair debate, this exemption renders the WPO inconsistent with the Lee Plan.

DISPOSITION

Based on the foregoing Findings of Fact and Conclusions of Law, it is ordered the Petition for Hearing Concerning Consistency of Lee County Wellfield Protection Ordinance with Lee County's Comprehensive Land Use Plan by the Responsible Growth Management Coalition, Inc., seeking a determination that the ordinance is inconsistent with the comprehensive plan, is denied.

ORDERED this 4th day of September, 1991, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 4th day of September, 1991.

ENDNOTES

1/ For purposes of this proceeding, the pertinent provision of the ordinances are contained in Ordinance No. 89-30.

2/ Actually, the record reflects that the petition initially was filed on November 16, 1990, but the Division of Administrative Hearings returned the petition, thinking it raised issues over which the Division had no jurisdiction. The petition was refiled, and accepted, on December 3, 1990.

3/ The County requested a stay on the ground that formal administrative proceedings under Section 163.3184 and 163.3187, Fla. Stat. (1989), were pending to determine whether the adopted Lee comprehensive plan is in compliance with the Growth Management Act.

4/ The Amended Request for Extension of Time to File Proposed Final Order recites that counsel for the DCA was unable to contact counsel for the other parties so as to be able to represent their positions on the request. The DCA's proposed final order was filed before the expiration of the time allotted for written responses to the request.

5/ The ordinance was amended in certain respects not pertinent to this proceeding by Lee Ordinance 90-40 and Lee Ordinance No. 90-46; the latter also changed the "sunset" date to September 1, 1993.

6/ No weight is given to impressions of Mr. Spikowski, the Director of Lee County's Growth Management Department, as to the intent of the Lee County Commissioners in not using the qualifying word "major" in the adopted version of Objective 41.1.

7/ The Petitioner initially voiced complaints concerning these wellfields, too. But the Petitioner's proposed final order focused on the Florida Cities-Waterway Estates wellfield (see the next Finding of Fact), apparently accepting as adequate for purposes of this proceeding the County's explanation that those wellfields pump from deeper aquifers whose confining layers protect them from contamination from the ground surface.

8/ The omitted facts were the subject of parts of County Exhibit 2, the transcript of informal proceedings in this case before the DCA. But in these respects at least, County Exhibit 2 is not capable of supporting findings of fact. See Section 120.58(1)(a), Fla. Stat. (1989).

9/ See Finding of Fact 5., above.

10/ The Petitioner also earlier voiced complaints concerning other wellfields permitted to pump 1 MGD or more that apparently were excluded from some protections. But the Petitioner's proposed final order focused on the Florida Cities-Waterway Estates wellfield, apparently accepting as adequate for purposes of this proceeding the County's explanation that those wellfields pump from deeper aquifers whose confining layers protect them from contamination from the ground surface. See Finding of Fact 16, footnote 7, above.

11/ The omitted facts were the subject of parts of County Exhibit 2, the transcript of informal proceedings in this case before the DCA. But in these respects at least, County Exhibit 2 is not capable of supporting findings of fact. See Section 120.58(1)(a), Fla. Stat. (1989).

12/ Note that Goal 41 in its entirety is incorporated by reference in Policy 85.1.7.

APPENDIX TO FINAL ORDER, CASE NO. 90-7659GM

To comply with the requirements of Section 120.59(2), Florida Statutes (1989), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

1.-4. Accepted and incorporated to the extent not subordinate or unnecessary.

1. The last clause of penultimate sentence and the last sentence are rejected as not proven. The rest is accepted and incorporated.

2. Rejected as not proven.

3. Rejected as being argument and conclusion of law.

4. Rejected as not proven, as argument and as conclusion of law.

5. First two sentences, accepted but subordinate and unnecessary. The rest is rejected as not proven, as argument and as conclusion of law.

6. Accepted (unless the resulting protection for 90% to 95% of the potable water supply is considered to be "technical") and incorporated.

7. Accepted that evidence was presented to show the need for more protection is possible, but subordinate and unnecessary. Rejected as not proven that an actual need was shown in the case of Lee County.

8. Rejected as not proven.

9. Accepted and incorporated.

10. First sentence, accepted and incorporated. The rest is rejected as not proven.

15.-16. Rejected as not proven.

1. Rejected as not proven, as argument and as conclusion of law.

2. Accepted and incorporated.

3. Accepted but subordinate and unnecessary. (This was one of a long list of "special concerns."

4. Accepted but subordinate and unnecessary.

5. Accepted and incorporated.

6. First sentence, accepted and incorporated. (However, the DER rule on the subject still is not in place.) Second sentence, rejected as contrary to the evidence (on the density reduction measures.) (The proposed finding seems to assume the erroneous conclusion of law that the burden of proof and persuasion was on the County. See Conclusion of Law 7, above.)

7. Accepted, but apparently based on an erroneous reading of the law, and unnecessary. See Conclusion of Law 7, above.

8. Rejected as not proven, as argument and as conclusion of law.

9. Accepted but unnecessary.

10. Accepted but subordinate to facts contrary to those found.

11. Accepted and incorporated.

12. First sentence, accepted and incorporated. Second sentence, rejected as conclusion of law.

13. Accepted and incorporated. However, the rules are not yet in place.

14. Rejected as not proven, as argument and as conclusion of law. 31.-32. Accepted and incorporated.

1. Rejected as not proven, as argument and as conclusion of law.

2. Rejected as contrary to facts found (they are prohibited within 500' of a wellhead.

3. Accepted and incorporated.

4. Rejected as not proven, as argument and as conclusion of law.

5. Accepted and incorporated.

6. First sentence, accepted and incorporated (although the risk is low.) Second and third sentences, rejected as not proven.

7. Rejected as not proven.

8. Rejected as not proven, as argument and as conclusion of law.

9. Rejected as not proven that the regulatory agencies would grant such a permit.

10. First sentence, rejected as not proven that the regulatory agencies would grant such a permit. Second sentence, accepted and incorporated to the extent not subordinate or unnecessary. Third sentence, in a theoretical sense, accepted and incorporated. Fourth sentence, accepted in a theoretical sense but subordinate and unnecessary.

11. Rejected as not proven, as argument and as conclusion of law.

Respondent Lee County's Proposed Findings of Fact.

1. Rejected as contrary to the greater weight of the evidence that, strictly speaking, a "cone of influence" approach is employed; otherwise, accepted and incorporated.

2. First sentence, accepted but subordinate to facts found. Second sentence, accepted and incorporated. Third sentence, rejected as being conclusion of law.

3. Accepted but subordinate and unnecessary.

4. Accepted but subordinate to facts found.

5. Accepted and incorporated to the extent not subordinate, argument or unnecessary. (However, it is clear from the evidence that the scientific basis for a different threshhold would be to provide more comprehensive protection.)

6. Accepted. First sentence, subordinate and irrelevent; second sentence, incorporated.

7. Accepted and incorporated to the extent not subordinate, argument, conclusion of law, or unnecessary.

8. Rejected. First sentence is argument; second sentence is contrary to the greater weight of the evidence. (The evidence was that the WPO permits it, not that any particular activities in Zone 4 would be permitted by the the regulatory agencies. See ruling on Petitioner's proposed finding 42., above.)

9. Accepted but argument and conclusion of law.

10. Accepted but subordinate and unnecessary. Respondent DCA's Proposed Findings of Fact.

1. Accepted and incorporated. 2.-3. Accepted but unnecessary.

1. Accepted and incorporated to the extent not subordinate or unnecessary.

2. Accepted and incorporated.

3. Accepted but subordinate and unnecessary. 7.-10. Accepted and incorporated.

1. Accepted; subordinate to facts found.

2. Accepted and incorporated.

13.-25 Accepted and incorporated to the extent not subordinate or unnecessary.

26. Rejected as contrary to the greater weight of the evidence that there was no competent, substantial evidence. Accepted that the evidence did not "substantiate" the Petitioner's case.

COPIES FURNISHED:

Thomas W. Reese, Esquire

123 Eighth Street North

St. Petersburg, Florida 33701

Gregory S. Hagen, Esquire Lee County Attorny's Office Post Office Box 398

Fort Myers, Florida 33902-0398

Michael P. Donaldson, Esquire Department of Community

Affairs

2740 Centerview Drive

Tallahassee, Florida 32399-2100

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 90-007659GM

Orders for Case No: 90-007659GM