STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ALAFIA RIVER BASIN )
STEWARDSHIP COUNCIL, INC., )
)
Petitioner, )
)
vs. ) Case No. 98-4925
)
SOUTHWEST FLORIDA WATER )
MANAGEMENT DISTRICT and )
TAMPA BAY WATER, )
)
Respondents. )
) MELODY R. HIGGINS, )
)
Petitioner, )
)
vs. ) Case No. 98-4926
)
SOUTHWEST FLORIDA WATER )
MANAGEMENT DISTRICT and )
TAMPA BAY WATER, )
)
Respondents. )
) STEVEN D. ROSSITER, )
)
Petitioner, )
)
vs. ) Case No. 98-4930
)
SOUTHWEST FLORIDA WATER )
MANAGEMENT DISTRICT and )
TAMPA BAY WATER, )
)
Respondents. )
)
JOHN SHERMAN, )
)
Petitioner, )
)
vs. ) Case No. 98-4931
)
SOUTHWEST FLORIDA WATER )
MANAGEMENT DISTRICT and )
TAMPA BAY WATER, )
)
Respondents. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was conducted in this case on April 5-9, 1998, in Tampa, Florida, before Lawrence P. Stevenson, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioners: Ronald S. McClain
Qualified Representative 4421 Gentrice Drive
Valrico, Florida 33594
For Respondent Anthony J. Mutchler, Esquire Southwest Florida Mark F. Lapp, Esquire
Water Management Southwest Florida Water District: Management District
2379 Broad Street
Brooksville, Florida 34609-6899
For Respondent Richard A. Harrison, Esquire Tampa Bay Water: Tabatha A. Liebert, Esquire
Allen, Dell, Frank & Trinkle, P.A. Post Office Box 2111
Barnett Plaza, Suite 1240
101 East Kennedy Boulevard Tampa, Florida 33601-2111
Donald D. Conn, General Counsel Tampa Bay Water
2535 Landmark Drive
Suite 211
Clearwater, Florida 33761-3950
STATEMENT OF THE ISSUE
The issue presented for decision in this case is whether Respondent, the Southwest Florida Water Management District (the "District"), should issue Water Use Permit ("WUP") No. 2011794.00 to the Respondent, Tampa Bay Water, pursuant to the Notice of Proposed Agency Action and Draft Water Use Permit issued on September 30, 1998.
PRELIMINARY STATEMENT
On October 26, 1998, seven original Petitioners filed with the District separate but identical petitions for formal hearing, challenging the proposed issuance of WUP No. 2011794.00 to Tampa Bay Water, as more fully described below. On November 4, 1998, the District referred the petitions to the Division of Administrative Hearings for assignment of an administrative law judge and conduct of formal administrative hearings pursuant to Section 120.57(1), Florida Statutes. On November 9, 1998, Tampa Bay Water filed a motion to consolidate the seven cases, which was granted by order dated November 23, 1998. By order dated January 25, 1999, Ronald Scott McClain was accepted as the Qualified Representative for Petitioners.
On February 17 and 18, 1999, respectively, Petitioners Joann Missant (DOAH Case No. 98-4927) and Trudy Kensinger (DOAH Case No. 98-4928) executed written stipulations of voluntary dismissal. Orders relinquishing jurisdiction and closing the files in these two cases were entered on March 12, 1999.
Petitioner John Mohme (DOAH Case No. 98-4929) left the State of
Florida during the pendency of these proceedings, relocating to Georgia with the intent to establish permanent residency and citizenship there. On March 16, 1999, Tampa Bay Water filed a Motion for Recommended Order of Dismissal as to Petitioner John Mohme for Mootness, and the motion was granted by order dated April 12, 1999. Thus, for purposes of this Recommended Order, the term "Petitioners" refers to the Alafia River Basin Stewardship Council, Inc. (DOAH Case No. 98-4925), Melody R. Higgins (DOAH Case No. 98-4926), Steven D. Rossiter (DOAH Case No. 98-4930) and John Sherman (DOAH Case No. 98-4931).
At the formal hearing, Respondent Tampa Bay Water presented the testimony of Jerry L. Maxwell, General Manager of Tampa Bay Water and an expert in local government administration; C. Edwin Copeland, Jr., P.E., a registered professional engineer and an expert in engineering, including the design, permitting and management of public works projects and public water supply facilities; George Eliason, P.W.S., a professional wetlands scientist and an expert in wetlands ecology, vegetative mapping and wildlife biology; Anthony J. Janicki, Ph.D., an expert in aquatic ecology and watershed management; and Mark E. Luther, Ph.D., an expert in marine science and physical oceanography.
The District presented the testimony of District employees Kenneth A. Webber, Chief Regulation Geologist; Michael Sidney Flannery, Environmental Scientist IV, and an expert in stream ecology, estuarine ecology, and aquatic ecology; and John Emery, Chief Water Use Environmental Scientist and an expert in water
use and environmental resource permitting, aquatic ecology, and wetland ecology.
The Petitioners presented the testimony of Holly Greening, a biologist with the Tampa Bay Estuary Program; Richard Eckenrod, Director of the Tampa Bay Estuary Program; Sybil Cribbs, owner of a canoe rental business located on the Alafia River; Steven Grabe, an employee of the Hillsborough County Environmental Protection Commission and an expert in aquatic ecology, benthic invertebrates, and estuarian ecology; Rudy Scheffer, State Outings Chairman for the Sierra Club and an expert in river recreation; Michael F. Kelley, P.E., a registered professional engineer and an expert in hydrology; Cheryl M. Bradford, Secretary of the Alafia River Basin Stewardship Council, Inc.; Susan Morris, a resident of Hillsborough County and an owner of property near the Alafia River; and Jon Nicholas Ehringer, Ph.D., an expert in aquatic biology, ecology, estuarine ecology, and stream ecology.
At the commencement of the hearing, Tampa Bay Water’s Exhibits 1 through 16, 18 through 60, and 62 through 116, inclusive, were admitted into evidence without objection. During the hearing, Tampa Bay Water’s additional Exhibits 58-1, 58-2,
58-3, 58-4, 58-5, 58-6, 58-7, 58-8, 58-9, 58-10, 58-11, 58-12,
58-13, 58-14, 58-15, 58-16, 60-1, 60-2, 60-3, 60-4, 60-5, 61-A,
61-B, 61-C, 61-D, and 61-E were also admitted into evidence without objection.
The District’s Exhibits A, B and C were admitted into evidence without objection.
Petitioners’ Exhibits 1, 2, 3, 7, 8 and 9 were admitted into evidence without objection. Petitioners’ Exhibit 4 was admitted into evidence over the objection of Tampa Bay Water. Petitioners’ Exhibit 6 was admitted into evidence over the objections of Tampa Bay Water and the District. Petitioners’ Exhibit 5 was offered but not admitted into evidence, based on the Petitioners’ failure to identify the document in accordance with the Prehearing Order and the objections of Tampa Bay Water and the District.
A Transcript of the final hearing was filed with the Division of Administrative Hearings on May 5, 1999. Respondents Tampa Bay Water and the District filed a joint proposed recommended order on May 17, 1999. Petitioners did not file a proposed recommended order.
FINDINGS OF FACT
Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made:
PARTIES
Petitioner Alafia River Basin Stewardship Council, Inc. (the "Council"), is a Florida not-for-profit corporation whose members consist of residents and business owners within the Alafia River Basin.
Petitioner Melody R. Higgins is a resident of Hillsborough County and a citizen of the State of Florida.
Petitioner Steven D. Rossiter is a resident of Hillsborough County and a citizen of the State of Florida.
Petitioner John Sherman is a resident of Hillsborough County and a citizen of the State of Florida.
Respondent Tampa Bay Water is a regional water supply authority created pursuant to Sections 373.1962 and 163.01, Florida Statutes. Tampa Bay Water was originally created as the "West Coast Regional Water Supply Authority" by an interlocal agreement among Hillsborough County, Pasco County, Pinellas County, the City of Tampa and the City of St. Petersburg. The City of New Port Richey was later added as a party to the original interlocal agreement.
The West Coast Regional Water Supply Authority was reorganized and restructured pursuant to the "Amended and Restated Interlocal Agreement Reorganizing the West Coast Regional Water Supply Authority," dated June 10, 1998. The reorganization of the West Coast Regional Water Supply Authority was expressly authorized by Section 373.1963, Florida Statutes, and was approved by Final Order of the Florida Department of Environmental Protection dated June 24, 1998, in OGC Case No. 98- 1921. The Parties to the Amended and Restated Interlocal Agreement are Hillsborough County, Pasco County, Pinellas County, the City of Tampa, the City of St. Petersburg, and the City of New Port Richey. The Board of Tampa Bay Water comprises elected officials from each of the six member governments.
By Joint Resolution No. 98-05, the West Coast Regional Water Supply Authority was renamed "Tampa Bay Water, A Regional Water Supply Authority."
The District is a water management district in the State of Florida created pursuant to Section 373.069(1)(d) and (2)(d), Florida Statutes. The District is the governmental agency charged with the responsibility and authority to review and act upon water use permit applications, pursuant to Chapter 373, Part II, Florida Statutes, and Chapters 40D-1 and 40D-2, Florida Administrative Code.
TAMPA BAY WATER’S EXISTING FACILITIES
Tampa Bay Water is a wholesale water supplier responsible for meeting the potable water needs of its six member governments. The member governments collectively serve approximately 2 million customers.
Tampa Bay Water is legally obligated to furnish water on a wholesale basis to its six member governments. Under the Amended and Restated Interlocal Agreement, Tampa Bay Water has the unequivocal obligation to meet the potable water needs of its six member governments on a regional basis. The Master Water Supply Contract between Tampa Bay Water and the six member governments outlines how Tampa Bay Water’s facilities will be connected to the member governments’ facilities and sets forth provisions for billing and collecting for the sale of water by Tampa Bay Water to the member governments.
Tampa Bay Water’s existing water supply facilities consist of a series of wellfields located throughout Hillsborough, Pinellas, and Pasco counties. These are: the Cypress Creek Wellfield; the Cross Bar Ranch Wellfield; the Cypress Bridge Wellfield; the Northwest Hillsborough Wellfield; the Starkey Wellfield; the North Pasco Wellfield; the South- Central Hillsborough Wellfield; the Cosme-Odessa Wellfield; the Section 21 Wellfield; the South Pasco Wellfield; the Eldridge- Wilde Wellfield; and the Morris Bridge Wellfield. With the exception of the South Central Hillsborough, Starkey and North Pasco Wellfields, these facilities are interconnected and are part of the interconnected water production system.
With the exception of the City of Tampa’s Hillsborough River supply, the existing wellfields and the interconnected system supply all of the water to meet the demands of the six member governments. The existing facilities currently produce approximately 145 to 150 million gallons per day ("mgd"), on average, with higher production during peak demand, accounting for substantially all of Tampa Bay Water’s current production.
The potential for environmental impacts of Tampa Bay Water’s groundwater pumping have been a matter of substantial concern to and dispute among the member governments, the District, the Legislature, and the public over the course of several years.
THE PARTNERSHIP AGREEMENT
In April 1998, Tampa Bay Water, its six member governments, and the District entered into an agreement entitled the "Northern Tampa Bay New Water Supply and Ground Water Withdrawal Reduction Agreement," commonly called the "Partnership Agreement."
The Partnership Agreement has four principal stated objectives: to develop at least 85 mgd annual average of new water supply to meet the needs of the area; to effect a reduction in groundwater pumping from the 11 existing wellfields to no more than 121 mgd annual average as of December 31, 2002, through December 31, 2007, and to no more than 90 mgd annual average as of December 31, 2007 through December 31, 2010, to allow environmental recovery; to end existing litigation between the parties to the agreement and avoid future litigation, including administrative proceedings; and to create a funding mechanism through which Tampa Bay Water can develop new water supply projects.
Pursuant to the Partnership Agreement, the existing water use permits for the eleven wellfields specified therein (Cosme-Odessa; Cross Bar Ranch; Cypress Bridge; Cypress Creek; Eldridge-Wilde; Morris Bridge; Northwest Hillsborough Regional; North Pasco; Section 21; Starkey; and South Pasco) were consolidated into a single permit (the "Consolidated Permit") under which Tampa Bay Water is the sole permittee. The expiration date of the Consolidated Permit is December 31, 2010.
Prior to execution of the Partnership Agreement, the exiting permits for the 11 wellfields allowed for cumulative withdrawals totaling approximately 192 mgd. Upon execution of the Partnership Agreement, the Consolidated Permit immediately reduced allowed withdrawals to no more than 158 mgd.
The Partnership Agreement requires that wellfield pumping from the 11 wellfields be further reduced to no more than
121 mgd by December 31, 2002, and then to no more than 90 mgd by December 31, 2007.
The Partnership Agreement also requires Tampa Bay Water to develop at least 38 mgd of new water supply by December 31, 2002, and a total of 85 mgd of new water supply by December 31, 2007. The Partnership Agreement requires that the new water supply projects be fully permitted, constructed, in operation and providing water for regional distribution by the stated deadlines.
The Partnership Agreement required Tampa Bay Water to submit to the District by July 1, 1998, a new water plan describing the projects that Tampa Bay Water intended to implement to meet the requirements of 38 mgd of new water supply by December 31, 2002, and 85 mgd of new water supply by
December 31, 2007.
The Partnership Agreement identifies the Alafia River Project as an alternative source of potable water that is eligible for some level of co-funding by the District.
PRODUCTION FAILURE
The Amended and Restated Interlocal Agreement requires that Tampa Bay Water maintain a supply capacity that is six percent greater than actual demand, on an average annual basis. The failure of Tampa Bay Water to maintain this six percent reserve capacity is defined under the Amended and Restated Interlocal Agreement as "Production Failure."
The six percent reserve capacity is intended to create a buffer between demand and permitted capacity.
Should Tampa Bay Water fail to maintain the six percent reserve capacity, the member governments would be entitled under the Amended and Restated Interlocal Agreement to void the regional water supply arrangement and independently pursue their own water supplies, essentially dissolving Tampa Bay Water.
Jerry L. Maxwell, the general manager of Tampa Bay Water, testified that the Alafia River Project is necessary to avoid Production Failure under the Amended and Restated Interlocal Agreement.
TAMPA BAY WATER’S NEW WATER PLAN
Tampa Bay Water has approved a "New Water Plan" that is intended to meet the requirements of the Amended and Restated Interlocal Agreement and the Partnership Agreement.
The planning and development of the New Water Plan took into account demand calculations based on population projections and per capita usage, the six percent reserve capacity required under the Amended and Restated Interlocal Agreement, and the
wellfield pumping reductions and new water supply requirements mandated by the Amended and Restated Interlocal Agreement and the Partnership Agreement. The New Water Plan is designed to meet all of these requirements, including the projected increased demand during the period between December 31, 2002 (the first phase of wellfield pumping reductions) and December 31, 2007 (the second phase of wellfield pumping reductions).
The New Water Plan includes: the Cypress Bridge II project, which would expand an existing wellfield; the Brandon Urban Dispersed Wells ("BUDW") project; the North and South Central Interties; a seawater desalination project; the Cone Ranch project; and the Enhanced Surface Water System, which includes the Alafia River Project at issue in this proceeding, the Tampa Bypass Canal/Hillsborough River High Water ("TBC") project, the South Central Intertie, the Central Hillsborough Regional Water Treatment Plant, and a proposed regional reservoir.
The permitting process for the seawater desalination plant has not yet begun.
The WUP for the TBC project was issued by the District on March 30, 1999.
The District has issued its proposed agency action on the BUDW project that would permit withdrawals of up to six mgd. An administrative challenge was filed, but has since been withdrawn. At the time of the final hearing in the instant case, Tampa Bay Water and Hillsborough County were engaged in an
arbitration proceeding that could result in the permitted withdrawals being reduced, but not increased, for the BUDW project.
No permit applications have yet been filed for the proposed regional reservoir project. The reservoir is not planned to be completed by December 31, 2002, and is not intended to meet the new water supply requirements as of that date.
Mr. Maxwell testified that the Alafia River Project, in conjunction with the TBC project, will produce an adequate new water supply to assist in meeting the December 31, 2002, requirements of the Partnership Agreement. Mr. Maxwell added that the reservoir, if constructed, will increase the year-round production of those facilities from approximately 23 mgd in dry periods to as much as 55 or 60 mgd.
THE ALAFIA RIVER PROJECT
The Alafia River Project is scheduled to be completed and fully operational prior to December 31, 2002.
The anticipated construction time for the Alafia River Project is roughly two and one-half years. No water withdrawals from the river will occur during the construction period.
The permit at issue in this proceeding is for the withdrawal of specified amounts of water. The water intake structure that will be required to accomplish this withdrawal will be the subject of a separate Environmental Resource Permit ("ERP") application.
Water withdrawn from the Alafia River will either be delivered to a water treatment plant, where it will be treated and put directly into the distribution system, or delivered to the proposed regional reservoir for storage and use when flows in the river system are low.
The proposed withdrawal point for the Alafia River Project is at Bell Shoals Road, approximately 10 river miles from the mouth of the river.
The Alafia River Project lies within the Alafia River basin. The Alafia River drains approximately 420 square miles of Polk County and eastern Hillsborough County, and flows into Hillsborough Bay near Gibsonton. Two tributaries, the North Prong Alafia River and the South Prong Alafia River, converge in eastern Hillsborough County to form the Alafia River. The Alafia River meanders generally westward and empties into the southeastern part of Hillsborough Bay.
Lithia Springs, a second magnitude spring, flows into the Alafia River upstream of the proposed withdrawal location, approximately 13.8 river miles upstream of U.S. Highway 41.
Buckhorn Springs flows into the Alafia River approximately 6.6 river miles upstream of U.S. Highway 41.
Water quality in the Alafia River is affected by residential, agricultural, and industrial land uses. Phosphate mining in the basin began over 100 years ago and remains a major land use activity.
The portion of the Alafia River from near the Bell Shoals bridge upstream to Alderman’s Ford Park is a state- designated canoe trail. Mr. Rudy Scheffer, outings chair for the Florida Sierra Club, knowledgeably testified that the canoe trail designation ends "right at the bridge."
THE APPLICATION AND PROPOSED PERMIT
Mr. Charles Edwin Copeland, a professional engineer employed by HDR Engineering and the manager of this project, testified that work on the WUP application began in early 1997 with some telephone conversations with District personnel and a meeting with the District in April 1997.
In July 1997, Mr. Copeland received a letter from Sid Flannery, a District environmental scientist, that provided some suggested analysis for withdrawals from the Alafia River and some guidelines to be considered in formulating a permit application.
Mr. Flannery suggested that Tampa Bay Water perform an analysis of historic flow trends in the Alafia River; the flow requirements of freshwater stream habitats from the vicinity of the withdrawal point downstream to the tidal reach; and the freshwater flow requirements of the estuary associated with the Alafia River. Mr. Flannery stated that these suggestions were intended to provide Tampa Bay Water with some idea of information the District would find useful for determining environmentally safe withdrawal schedules from the Alafia River.
Personnel from the District and Tampa Bay Water’s project team held approximately 12 to 14 meetings prior to submittal of the WUP application.
Tampa Bay Water submitted its WUP application to the District on June 17, 1998.
The WUP application included a separate volume, also dated June 17, 1998, entitled "Water Use Permit Application Public Supply Supplemental Document." This document included information regarding wastewater treatment and reuse, fire flow and standby capacity, regional demand characteristics and projections, peak month quantities, desalination project information, property acquisition information, and conservation and demand management programs.
On July 17, 1998, the District sent Tampa Bay Water a Request for Additional Information ("RAI") in connection with the WUP Application. The RAI consisted of 18 pages of questions regarding technical aspects of the application relating to the Alafia River, the Hillsborough River, the Tampa Bypass Canal, and the Cumulative Impact Study submitted in association with this WUP and those for the BUDW and TBC projects. The RAI also requested assurances in relation to the submission of an ERP application for the proposed Alafia River water intake structure.
On August 14, 1998, Tampa Bay Water responded to the
RAI.
On September 8, 1998, Tampa Bay Water sent the District
a follow-up response to the RAI, furnishing certain data on
salinity projections that was not available at the time of the August 14, 1998, response.
By letter dated September 11, 1998, the District requested clarification of certain information submitted by Tampa Bay Water.
Tampa Bay Water responded to the District’s clarification letter on September 17, 1998.
By letter dated September 28, 1998, the District advised Tampa Bay Water that the Alafia River Project WUP Application had been deemed complete as of September 21, 1998.
On September 30, 1998, the District issued its Notice of Proposed Agency Action in which it proposed approval of WUP No. 2011794.00 for the Alafia River Project. A copy of the proposed WUP was attached to the Notice of Proposed Agency Action.
The proposed WUP included the following basic information: the permittee’s name and address; permit number; date permit application filed; date permit granted; permit expiration date; water source classification; water use classification; property location; quantity permitted; and withdrawal locations.
The proposed WUP would permit Tampa Bay Water to withdraw water from the Alafia River for the purpose of providing additional new water supply quantities for Tampa Bay Water’s interconnected regional water system.
Under the proposed WUP, withdrawals from the Alafia River will be limited to periods when flows in the river, as estimated at Bell Shoals Road using the calculation specified in the proposed WUP, are greater than 124 cubic feet per second ("cfs"). Surface water withdrawals will be permitted at a rate of 10 percent of the total river flow at Bell Shoals Road from
124 cfs up to 800 cfs, with a maximum withdrawal rate of 80 cfs at any flow level. These limitations on the withdrawals from the Alafia River are set out in detail in Special Condition 2 (Withdrawal Limitations) and Special Condition 3 (Pumping Schedule and Available Quantities) of the proposed WUP. The calculation by which flows at Bell Shoals Road will be measured is set out in detail in Special Condition 11 (Alafia River Regional Pumping Facilities Operation and Regulatory Levels) of the proposed WUP.
The proposed WUP also includes Special Condition 8 (Monitoring of Environmental Conditions), which requires Tampa Bay Water to develop and implement a hydrobiological monitoring program ("HBMP") for the Alafia River. The scope and design of the HBMP will be based on discussions between District staff and Tampa Bay Water. These discussions are required to occur within
60 days of permit issuance. A draft HBMP is required to be submitted by Tampa Bay Water to the District within 120 days of permit issuance. The District may seek outside technical review for the design of the HBMP, and the final HBMP must be approved by the District prior to implementation.
The proposed WUP requires that the HBMP address the following objectives:
Establish baseline conditions prior to permitted use for streamflow rates, salinity distributions, and selected water quality and biological variables within the Alafia River and its estuary.
Monitor withdrawals from the Alafia River at the withdrawal point and evaluate streamflow data for the river at all applicable locations.
Evaluate the ecological relationships of the Alafia River and its estuary to freshwater flows.
Monitor selected water quality and biological variables in order to determine if the ecological characteristics of the river and its estuary related to freshwater flow change over time.
Determine the relative effect of permitted withdrawals from the Alafia River on any ecologic changes that may occur in the river and its estuary.
Determine if these withdrawals cause or significantly contribute to any unacceptable environmental impacts that the river and its estuary exhibit as a result of changes in freshwater flows.
Coordinate with appropriate agencies which have or are currently collecting data which can be incorporated into the HBMP to avoid duplication of effort and to facilitate the most efficient use of resources.
The proposed WUP also requires that HBMP reports be submitted to the District according to a schedule to be established in the final approved HBMP. The reports will include yearly data and periodic interpretive reports.
The proposed WUP additionally provides that the District will review the results of these reports to determine if the withdrawals have resulted or are expected to result in unacceptable environmental impacts to the natural resources of the Alafia River and its estuary. If unacceptable environmental impacts have occurred or are expected to occur due to the withdrawals, then the District may require a revision to the withdrawal schedule.
The proposed WUP also contains Special Condition 18 (Minimum Flows for Alafia River), which indicates that the District anticipates establishment of minimum flows for the Alafia River during the term of the permit. Once minimum flows are adopted, the permit may be subject to additional comprehensive review by the District. The decision as to the need for further modification or review of the permit will be made by the District after adoption of minimum flows for the Alafia River system. All withdrawals from the Alafia River will be consistent with the adopted minimum flow.
The proposed WUP includes other Special Conditions, including data reporting requirements, a stipulation that the withdrawals from the Alafia River are to be used to provide replacement and rotational capacity for designated wellfields, and the requirement that Tampa Bay Water develop and implement a "Watershed Protection Program and Action Plan" for the Alafia River watershed.
The proposed WUP includes the Standard Conditions set forth in Rule 40D-2.381, Florida Administrative Code.
The proposed permit expiration date is December 31, 2010.
The proposed WUP is not the required permit for the withdrawal structure that will be constructed in connection with the Alafia River Project.
The withdrawal structure will require an ERP that will be considered under a separate permitting process.
A complete application for the withdrawal structure has been submitted and a conceptual ERP has been issued for the withdrawal structure. John Emery, Chief Water Use Environmental Scientist for the District, testified that any impacts on navigation are required to be considered as a condition for issuance of the final ERP for the withdrawal structure.
CONDITIONS FOR ISSUANCE OF PERMIT
An applicant for a WUP must demonstrate that the proposed use of water is reasonable and beneficial, is in the public interest, and will not interfere with any existing legal use of water, by providing reasonable assurances on both and individual and a cumulative basis that the proposed use of water satisfies the 14 specific conditions set forth in Rule 40D- 2.301(1)(a)-(n), Florida Administrative Code, identified in the subheadings below. The parties stipulated that 11 of the 14 conditions were met.
Extensive testimony was elicited from several expert witnesses with respect to the three disputed conditions, which deal with water quantity and quality changes, environmental impacts, and saline water intrusion. To some extent these criteria overlap. For example, saline water intrusion also bears on water quality and environmental impacts. The placement of a finding of fact under a particular subheading below does not mean that it supports only the particular condition for issuance under which it is discussed.
Necessary to Fulfill a Certain Reasonable Demand
The parties stipulated that the Alafia River Project is necessary to fulfill a "certain reasonable demand," as required by Rule 40D-2.301(1)(a), Florida Administrative Code.
Jerry Maxwell, the General Manager of Tampa Bay Water and an expert in local government administration, testified that the Alafia River Project is necessary for Tampa Bay Water to meet the demand of its member governments for potable water and is critically necessary to make up for some of the supply that will be lost as a result of the wellfield pumping reductions required by the Partnership Agreement and the Consolidated Permit.
Mr. Maxwell further concluded that it would not be in the public interest to implement the wellfield pumping reductions until the new sources of water are fully operational. He testified that implementing the reductions without new sources could create catastrophic impacts on the provision of fire
service and the ability to supply water to tall buildings and hospitals within the area encompassed by the member governments.
Quantity/Quality Changes Adversely Impacting Water Resources
Tampa Bay Water and the District presented extensive testimony regarding potential quantity and quality changes that might result from the Alafia River Project and the proposed withdrawals from the river.
Testing and monitoring of the Alafia River have been conducted by several agencies including the United States Geological Survey ("USGS") and the Hillsborough County Environmental Protection Commission ("HCEPC"). HCEPC has monitored the water quality of the Alafia River since 1974. HCEPC maintains monitoring stations on the Alafia River at the following locations: Alafia River at U.S. 41; Alafia River at Bell Shoals Road; North Prong and South Prong, upstream of the confluence; and South Prong at Bethlehem Road.
The USGS has monitored stage, discharge, and water quality of the Alafia River since the 1950s. The USGS has four gages along the Alafia River at the following locations: Alafia River at Lithia; North Prong at Keysville; South Prong near Lithia; and Lithia Springs near Lithia.
Tampa Bay Water’s consultant, HDR Engineering, calculated flows at the proposed withdrawal location at Bell Shoals Road, using the available historical flow data from the USGS gage at Lithia, which is about five miles upstream from the
withdrawal point. Flow data from this station was available dating back to 1932.
The data used in this calculation was flow data from January 1, 1977 through December 31, 1996. Data prior to 1977 were not used because the higher flows in those years, most likely caused by then-current phosphate mining practices, might overstate available flow at present.
The flows at Bell Shoals Road were calculated using the available flow data from Lithia by use of a scientifically and hydrologically sound formula. The Lithia flows were adjusted to account for the additional contributing basin area up to the withdrawal point, a calculation arrived at by use of standard USGS and Environmental Protection Agency ("EPA") mapping programs. Flows at points downstream of the withdrawal location were calculated in similar fashion.
Mr. Maxwell testified that the proposed withdrawal schedule for the Alafia River Project is intended to protect the high flows and low flows in the river and to be sensitive to the estuarine system at the mouth of the river. Sid Flannery, the District’s environmental scientist, testified that the District performed extensive, site-specific evaluation of the data submitted by Tampa Bay Water and information otherwise available to the District.
The Alafia River Project will not affect the river at periods of low flow, because no withdrawals will be permitted when flow is less than 124 cfs at Bell Shoals Road. At periods
of high flow, the withdrawals will be capped at 80 cfs. Any flows in excess of 800 cfs will pass through without additional withdrawal, preserving the high flow conditions.
The 124 cfs minimum flow requirement for withdrawals was derived from a percentile analysis of the daily historical flows during the 20-year period of record based on the USGS data. The minimum of 124 cfs corresponds to the 80 percentile; that is, flow is 124 cfs or greater for 80 percent of an average year. Previous safe yield studies for the Alafia River conducted by the District and others had utilized withdrawals beginning at the 90 percentile. The 80 percentile was selected because minimum flows for the Alafia River had not yet been established by the District and the 80 percentile standard was a more conservative approach.
The 10 percent withdrawal rate at flows above 124 cfs was determined based on knowledge of the Alafia River, study of all other surface water withdrawal projects in the area, and suggestions by the District.
Tampa Bay Water analyzed the projected withdrawals based on the proposed withdrawal schedule in the context of historical data for an "average" year, a "dry" year, and a "wet" year.
The proposed withdrawal schedule for the Alafia River Project is more conservative than the withdrawals allowed in any of the existing surface water projects in the region.
Tampa Bay Water analyzed the potential changes in the height, or stage, of the Alafia River as a result of the
withdrawals, using historical data and standard computer modeling techniques from the U.S. Army Corps of Engineers and the Environmental Protection Agency.
The results of the computer modeling demonstrated that at 124 cfs, the point at which withdrawals would commence, there would be virtually no measurable impact on the stage of the river. Initial model runs indicated that at 124 cfs, the maximum change in stage under any tide condition would be 0.17 feet, or approximately 2 inches, at the withdrawal point. Subsequent modeling indicated changes of even lesser magnitude.
At 800 cfs, the highest flow at which 10 percent withdrawals can occur, the maximum predicted change in stage would be 0.29 feet, or approximately 3.5 inches. Mr. Copeland stated that at that flow rate, the stage of the river would have already risen by 6 to 9 feet, minimizing any potential impact of a 3.5-inch decrease caused by the withdrawal.
Mr. Copeland concluded that the Alafia River Project, on both an individual and a cumulative basis, would not cause quantity or quality changes which adversely impact the water resources, including both surface and groundwaters, and that Tampa Bay Water has provided reasonable assurances in that regard.
Mr. John Emery, Chief Water Use Environmental Scientist for the District, testified that impacts on recreational uses of the river were considered in the District’s review of the WUP application. Given that the predicted reductions in the level of
the river were minimal, the District concluded that there would be no adverse impacts to recreational use of the river.
Specifically, Mr. Emery concluded that there would be no adverse impacts on canoeing as a result of the project.
Mr. Flannery agreed that the proposed withdrawals from the river would not adversely affect navigation of recreational vessels in the river.
Ms. Sybil Cribbs, who has owned and operated a canoe livery business on the Alafia River since 1976, testified as to her observations of the conditions of the Alafia River at periods of "high flow" and "low flow," or "high water" and "low water." Ms. Cribbs' observations of the river are credited, but do not contradict or negate Tampa Bay Water's documentation and supporting testimony regarding the minimal impact the project is expected to have on the recreational navigability of the Alafia River.
Ms. Cribbs was unable to address technical issues such as the rate of flow in cfs at Bell Shoals Road under the conditions she observed, or as to the depth of the river at Bell Shoals Road when flow is at 124 cfs or any other level. Thus, it was impossible to relate her testimony regarding the difficulty of navigating the river at what she termed "low flow" to any potential impact the withdrawals may have when they commence at
124 cfs.
Mr. Rudy Scheffer, Petitioners’ river recreation expert, was similarly unable to testify as to the rate of flow in
cfs at Bell Shoals Road on the single occasion that he had canoed past the proposed withdrawal point, or to testify whether the flow was greater or less than 124 cfs. He was unable to testify how much water would have to be withdrawn from the river before the draw down could affect canoe traffic. He also described conditions on the river in terms of "high" and "low" water levels, but could not tie those general descriptions to actual measured water levels or flow rates in cfs.
Mr. Scheffer’s observational experience of the river is credited, but he lacked the expertise or knowledge of the technical aspects of Tampa Bay Water’s proposed project to convincingly dispute the documentation and supporting testimony that indicates a minimal impact on recreational navigation.
Ms. Susan Morris, who resides on the Alafia River, testified that she took a boat trip on the Alafia River to the proposed withdrawal point the weekend prior to the final hearing. She described the water conditions as "low flow" and testified that she believed the flow was approximately 50 to 55 cfs near the withdrawal location, based on what she believed to be a formula by which the flow can be calculated.
The formula described by Ms. Morris appeared to be a rough version of that employed by Tampa Bay Water to extrapolate the flow at the withdrawal point from the actual readings at the Bell Shoals gage. However, the "low flow" she calculated was much lower than the point at which any withdrawals would occur. Thus, even if her calculation is credited, it fails to offer any
relevant critique of the withdrawal schedule proposed by Tampa Bay Water.
The testimony of Ms. Cribbs, Mr. Scheffer, and Ms. Morris is credited to the extent it represents personal
observations by those individuals of various river conditions. Ms. Morris' calculation is credited as a close approximation of the flow at the time she made her observation. As discussed in the conclusions of law below, however, the testimony of these witnesses as to the various river conditions they observed is irrelevant because it cannot be reliably related to the withdrawal schedule actually proposed by Tampa Bay Water.
HCEPC water quality data from 1974 to the time of the WUP Application were used to predict changes in nutrient loadings to Tampa Bay as a result of the Alafia River Project withdrawals. The water quality data were collected from HCEPC station 74, at
U.S. Highway 41, and Station 114, at Bell Shoals Road.
Mr. Flannery testified that Tampa Bay Water provided information regarding water quality characteristics at those sites, including statistical summaries of nutrients and various parameters. The District also required correlations to determine which water quality parameters were related to flow and whether there were any trends in water quality at those stations.
Mr. Flannery reviewed this water quality information and concluded that the Alafia River Project would not cause adverse impacts to the water quality of the river or the estuary and that
Tampa Bay Water has provided reasonable assurances in that regard.
Dr. Anthony Janicki, an expert in aquatic ecology and watershed management with Janicki Environmental, Inc., has studied nitrogen and nutrient levels within the Tampa Bay watershed, including the Alafia, Hillsborough, and Little Manatee basins. In connection with this project, he assessed dissolved oxygen, chlorophyll, and nutrient concentrations in the Alafia River. He concluded that the Alafia River Project, on both an individual and a cumulative basis, will not cause quantitative or qualitative changes which adversely impact the water resources, and that Tampa Bay Water has provided reasonable assurances in that regard.
Mr. Emery has reviewed nearly 200 water use applications in his career with the District. In this case, he was primarily responsible for reviewing the WUP application to determine whether reasonable assurances as to environmental conditions for issuance have been provided. Mr. Emery concluded that the Alafia River Project, on both an individual and a cumulative basis, will not cause quantitative or qualitative changes which adversely impact the water resources, and that Tampa Bay Water has provided reasonable assurances in that regard.
Mr. Flannery also extensively reviewed the information submitted by Tampa Bay Water in the WUP application, participated in formulating the District’s RAI and Request for Clarification,
and reviewed the information submitted by Tampa Bay Water in response to those requests from the District. He primarily reviewed those aspects associated with the flow regime of the river, the withdrawal schedule, the impact of the withdrawal schedule upon the flow regime, and the environmental and ecological information. Mr. Flannery concluded that the Alafia River Project, on both an individual and a cumulative basis, will not cause quantitative or qualitative changes which adversely impact the water resources, and that Tampa Bay Water has provided reasonable assurances in that regard.
Petitioners presented no evidence to dispute the hydrological data and analyses presented in the WUP Application. Mr. Michael Kelley, Petitioners’ hydrology expert, testified that he did not question the hydrological data in the WUP Application that he reviewed. He stated that, as a hydrologist, he concurred with the numbers in the application and could reach no firm conclusions as to the significance of the changes in flow that the withdrawals are projected to cause.
Adverse Environmental Impacts to Wetlands, Lakes, Streams, Estuaries, Fish and Wildlife, or Other Natural Resources
Tampa Bay Water and the District presented extensive testimony regarding the assessment of potential environmental impacts of the Alafia River Project. A particular area of concern was salinity and tidal circulation changes, given that the level of the Alafia River is affected by the tides of Tampa Bay, a salt water body.
Dr. Mark Luther, a professor at the University of South Florida's Department of Marine Science, working in conjunction with Tampa Bay Water’s consultant, Post, Buckley, Schuh, & Jernigan, developed a three dimensional hydrographic model to assess the cumulative effects of this and two other Tampa Bay Water projects on salinity and circulation in Tampa Bay. The model predicted that the projects would have a cumulative impact of 1.0 parts per thousand ("ppt") or less on salinity bay-wide. It also predicted some influence from the freshwater withdrawals from the Alafia River in a small area near the mouth of that river, changing the surface salinity by less than .75 ppt throughout the year.
Dr. Luther testified that these changes would be minor compared to the natural deviations that occur in salinity on the Alafia River, which monitoring data show are on the order of seven or eight ppt.
Dr. Luther testified that the model also indicated that some impacts on tidal residual circulation and flushing time may occur, but that these impacts would not be persistent or widespread enough to significantly alter water quality. In his opinion, the HBMP to be developed subsequent to issuance of the permit can adequately address these impacts.
Mr. George Eliason, a professional wetlands scientist with HDR Engineering and an expert in wetlands ecology, vegetative mapping and wildlife biology, was responsible for addressing the potential environmental impacts of the project.
Mr. Eliason’s work included review of the existing land cover within potentially affected areas of the Alafia River basin, field review for wildlife utilization, and vegetative mapping and transects to evaluate potential effects of the project.
To assess existing environmental conditions, Tampa Bay Water reviewed existing mapping previously conducted by the District and the West Coast Regional Water Supply Authority using the Florida Land Use Cover and Forms Classification System ("FLUCFCS") for the Alafia River basin downstream of the withdrawal location at Bell Shoals Road, the area where potential effects are most likely to be seen.
Based on this mapping data and field surveys performed both on foot and from a boat in the Alafia River, Tampa Bay Water was able to accurately describe the significant environmental communities in and around the Alafia River downstream of the withdrawal location. These communities included the upland habitats, the wetland habitats (including the riverine, estuarine and palustrine systems), and the faunal communities (including benthic macroinvertebrates, estuarine and freshwater fisheries, and marine mammals).
Tampa Bay Water also used field reconnaissance combined with USGS digital orthophoto quarter quads (a series of aerial color infra-red photographs) to catalog by species the shoreline vegetative coverage on both the north and south banks of the river from the withdrawal location to the mouth.
Tampa Bay Water did not conduct specific surveys for submergent aquatic vegetation, but did review available existing mapping of submergent aquatic vegetation. In his review,
Mr. Eliason noted some sparse aquatic beds on some of the shoreline. Mr. Eliason testified that the density of the grass beds was so thin that it made more sense to characterize those areas as mangrove or Juncus swamp. Within the river channel itself, Mr. Eliason’s visual inspection did not reveal any submergent aquatic vegetation, though he qualified this finding by noting the poor water clarity in the channel.
Dr. Janicki testified that there was very little submerged aquatic vegetation in the Alafia River. This testimony was based on his knowledge that when the Tampa Bay National Estuary Program retained a contractor to map submerged aquatic vegetation in the Alafia River and a number of tributaries, the contract was cut short because the contractor was unable to locate significant areas of such vegetation.
Based on the mapping of the vegetation along the Alafia River shorelines and data regarding the salinity tolerances of the identified species, Mr. Eliason concluded that the salinity changes of up to 1.0 ppt predicted by Dr. Luther's model would have no adverse impact on the vegetation along the Alafia River. This conclusion was confirmed by the fact that individual species found in an affected segment were also found in areas of higher salinity downstream.
Mr. Eliason also concluded that the minor changes predicted in salinity and river stage would not adversely affect the fish and invertebrate communities in and around the Alafia River.
In response to a specific request from the District, Mr. Eliason performed close-interval ecological transects at four points selected in consultation with District personnel and other Tampa Bay Water consultants during field inspections. Transects were not necessary further downstream in the tidally influenced areas of the river because the predicted change in elevation was zero in the tidally influenced areas. The vegetation in those areas is already established and existing within a system that periodically experiences wide variations in salinity from fresh water to saline water. As a result, the experts agreed that no impacts in those areas would be anticipated. Both Mr. Eliason and Mr. Flannery explained that the transects were done at the locations where the greatest changes in surface water elevation would be anticipated.
The close interval transects were performed by having a surveyor perform a survey cross-section at each of the four points from the top of one bank, down the bank, through the river channel, and up the opposite side to the top of the opposite bank. A tape measure was then strung along the transect line and the vegetation was identified and classified in one-inch increments along the complete transect. One-inch increments were
used because the predicted changes in river stage resulting from the Alafia River Project were on the order of inches.
The transect data was depicted graphically in combination with lines representing the level of the river at flows of 50 cfs, 124 cfs, 400 cfs, 800 cfs and 1500 cfs. This depiction allowed Tampa Bay Water to assess which natural vegetative communities might be exposed or affected by potential changes in the elevation of the river.
Transects 1 and 2 included wetland communities on the north side of the river which would be inundated at flows of 900 to 1500 cfs. The predicted change in the inundation frequency due to the withdrawals from the Alafia River Project was very small, less than one day per year for an average year.
Transect 4 was located in the area where Bell Creek drains into the Alafia River, including a small forested wetland island. This is the most significant wetland community in the immediate vicinity and downstream of the proposed withdrawal location. The wetland island is not inundated even at flows of 1500 cfs, due to the tidal influence at that point in the river.
Mr. Eliason explained that Tampa Bay Water had assessed those areas where the greatest potential impacts would be expected to occur and looked at the most sensitive resources within those areas, yet found no adverse impacts. Mr. Eliason testified that, given the information that Tampa Bay Water possessed regarding predicted changes in surface water elevation
and the close-interval transect data, it was not necessary to do any further assessment of potential wetland impacts.
Mr. Eliason testified that, in an estuarine system, a temporary loss of a species or a shift in the distribution of a species is not an adverse impact because the dynamics of an estuary are such that a shift or temporary loss can occur naturally.
Mr. Eliason concluded that no critical or specially sensitive habitats would be affected and that the periodic exposure of these areas would not be an adverse impact to the riverine system. Mr. Eliason concluded that Tampa Bay Water provided reasonable assurances, on both an individual and a cumulative basis, that the Alafia River Project will not cause adverse environmental impacts to wetlands, lakes, streams, estuaries, fish and wildlife, or other natural resources.
Dr. Janicki also studied the vegetation, benthic organisms and fishes that inhabit the lower Alafia River. Dr. Janicki compared the predicted changes in salinity concentration to data on salinity tolerances and preferences for the species inhabiting the area. In all cases, the salinity conditions that are predicted to result from the proposed withdrawals are well within the range of salinity tolerance for all of the organisms studied.
Dr. Janicki concluded that the Alafia River Project, on both an individual and a cumulative basis, will not cause adverse environmental impacts to wetlands, lakes, streams, estuaries,
fish or wildlife, or other natural resources, and that Tampa Bay Water has provided reasonable assurances in that regard.
Mr. Emery concluded that the Alafia River Project, on both an individual and a cumulative basis, will not cause adverse environmental impacts to wetlands, lakes, streams, estuaries, fish or wildlife, or other natural resources, and that Tampa Bay Water has provided reasonable assurances in that regard.
Mr. Flannery concluded that the Alafia River Project, on both an individual and a cumulative basis, will not cause adverse environmental impacts to wetlands, lakes, streams, estuaries, fish or wildlife, or other natural resources and that Tampa Bay Water has provided reasonable assurances in that regard.
Dr. Ehringer, Petitioners’ ecology expert, testified that no reasonable assurances were provided as to impacts on wetlands upstream or downstream of the proposed withdrawal location. In his opinion, Tampa Bay Water did not obtain sufficient data or perform adequate evaluations of the wetlands to be able to provide reasonable assurances that the wetlands will not be "bothered."
Dr. Ehringer made reference to a 1981 assessment of the biological impacts of altered freshwater inflow to the Alafia River, Bullfrog Creek, and the Hillsborough Bay estuarine system, prepared by a consultant for the District. The report recommended that flow rates from the Alafia River should always
be maintained at about 100 cfs, unless natural flows are less, to maintain the biological conditions within Hillsborough Bay.
Dr. Ehringer testified that the maintenance of high flows is important because the entire Alafia River should be allowed to flush completely once every two years or for a period of two weeks, and that this flushing event should coincide with the periods of natural maximum rainfall. He concluded that withdrawals should not be allowed during periods of high flow, until additional predictive information was provided by Tampa Bay Water as to the impacts on wetlands.
Dr. Ehringer did agree that if the changes in salinity as a result of the project were less than 1.0 ppt, then there would not be any impacts on the biota in the river.
Deviation from Water Levels or Rates of Flow
The parties stipulated that the Alafia River Project would not cause water levels or rates of flow to deviate from the ranges set forth in Chapter 40D-8, Florida Administrative Code, the District’s rules regarding the establishment of minimum flows and levels at specific locations throughout the District.
The District has not yet established any minimum flows or levels for the Alafia River.
Utilization of Lowest Quality of Water
The parties stipulated that the Alafia River Project utilizes the lowest quality of water that Tampa Bay Water has the ability to use.
Saline Water Intrusion
Extensive testimony was presented regarding predicted changes in both salinity concentrations and the location of the saltwater interface within the Alafia River.
Because the lower portion of the Alafia River is tidally influenced, saltwater naturally migrates up and down the river.
The isohalene, i.e., the point at which the interface between fresh water and salt water occurs, is defined as the point in the river at which the salinity is equal to 0.55 ppt. Dr. Janicki testified that, by convention, 0.5 ppt is used as the definition of fresh water. Salinities less than 0.5 ppt are considered "fresh" and salinities greater than 0.5 ppt are considered "saline." Dr. Janicki testified that the salinity concentration at the mouth of the river is generally about 18 ppt.
The saltwater interface moves naturally as the result of the tides and the seasons.
Existing USGS data document the location and movement of the saltwater interface in the Alafia River. Tampa Bay Water calculated the same information, factoring in the proposed withdrawals, and then compared the pre- and post-withdrawal information as to the location and movement of the saltwater interface.
Tampa Bay Water’s calculations indicated that the maximum movement of the saltwater interface occurs at high tide
and low flow. Under that condition of maximum movement, the predicted post-withdrawal change in the location of the saltwater interface is 0.4 miles, which is within the natural range of the saltwater interface movement in the river. Under any withdrawal scenario, the saltwater interface does not move outside of its normal range of fluctuation in the river.
Tampa Bay Water also modeled predicted changes in salinity concentrations throughout the Alafia River. The Alafia River Segment Model divided the river into 18 segments, each of which contains an existing salinity monitoring station maintained by HCEPC or the District. The monitoring stations were centrally located in each segment, and it was assumed that this central point represented the average salinity concentration for the segment.
The model utilized a "mass balance" approach to factor- in projected withdrawals and predict changes in salinity in each of the segments. It was assumed that as water was withdrawn at Bell Shoals, a like volume of downstream water would move upstream to take its place. The predicted post-withdrawal salinity was thus a mass balance of the original, pre-withdrawal salinity of a segment and the salinity concentration of the downstream water that moved into that segment upon withdrawal.
The maximum predicted change in salinity in all segments was less than 1.0 ppt. Tampa Bay Water’s data indicated that natural fluctuations in salinity within the river due to changes in flow and tide are on the order of 8 ppt to 10 ppt.
Mr. Copeland concluded that the Alafia River Project, on both an individual and a cumulative basis, would not significantly induce saline water intrusion, and that Tampa Bay Water has provided reasonable assurances in that regard.
Dr. Janicki evaluated the potential impacts of the withdrawals on salinity in the river downstream from the withdrawal location. Dr. Janicki concluded that the withdrawals would result in the 0.5 ppt isohaline (the saltwater interface) moving upstream approximately one-quarter mile.
In a report entitled "Assessment of the Effects of Reductions in Freshwater Inflow on the Biological Communities of the Lower Alafia River," Dr. Janicki assessed the predicted change in salinity that would result from the project, using data from HCEPC Station 74, located in the Alafia River near U.S. Highway 41. Dr. Janicki compared the mean monthly salinity at top, middle, and bottom water levels without any withdrawals to the predicted salinity with the Alafia River Project withdrawals. The maximum predicted change in salinity was 1.0 ppt in October, where the salinity without any withdrawals was 12.9 ppt.
Dr. Janicki testified that the predicted changes in salinity would not cause adverse environmental impacts to the Alafia River or to Tampa Bay because the magnitude of the predicted changes was relatively small and within the range of salinity tolerances for organisms that might be affected, and because natural forces such as heavy rains would flush away any salinity accumulations from time to time.
Dr. Janicki concluded that the Alafia River Project, on both an individual and a cumulative basis, will not significantly induce saline water intrusion and that Tampa Bay Water has provided reasonable assurances in that regard.
Mr. Emery concluded that the Alafia River Project, on both an individual and a cumulative basis, will not significantly induce saline water intrusion and that Tampa Bay Water has provided reasonable assurances in that regard.
Mr. Flannery concluded that the Alafia River Project, on both an individual and a cumulative basis, will not significantly induce saline water intrusion and that Tampa Bay Water has provided reasonable assurances in that regard.
Pollution of the Aquifer
The parties stipulated that the Alafia River Project will not cause pollution of the aquifer.
Adverse Impacts to Existing Offsite Land Uses
The parties stipulated that the Alafia River Project will not adversely impact off-site land uses existing at the time of the application.
(i) Adverse Impacts to Existing Legal Withdrawals
The parties stipulated that the Alafia River Project will not adversely impact an existing legal withdrawal.
Utilization of Local Resources to Greatest Extent Practicable
The parties stipulated that the Alafia River Project will utilize local resources to the greatest extent practicable.
Incorporation of Water Conservation Measures
The parties stipulated that the Alafia River Project will incorporate water conservation measures.
In addition, Mr. Maxwell testified that Tampa Bay Water’s new water plan incorporates an aggressive conservation program that is anticipated to reduce consumption by up to 10 mgd by 2002 and up to 17 mgd by 2005.
Incorporation of Reuse Measures
The parties stipulated that the Alafia River Project will incorporate reuse measures to the greatest extent practicable.
Not Cause Water to Go to Waste
The parties stipulated that the Alafia River Project will not cause water to go to waste.
Not Be Otherwise Harmful to Water Resources
The parties stipulated that the Alafia River Project will not otherwise be harmful to the water resources within the District.
CUMULATIVE IMPACTS
Tampa Bay Water provided the District with two separate cumulative impact assessments utilizing four different modeling approaches in connection with the Alafia River Project.
Dr. Janicki prepared a report entitled "Cumulative Impact Analysis for Master Water Plan Projects," dated April 30, 1998, which was included with the initial WUP Application.
Dr. Janicki’s study was designed to assess the potential cumulative impacts that might result from implementation of all of the withdrawal projects then under consideration by Tampa Bay Water. Specifically, the study considered the cumulative effects of implementation of the Alafia River, TBC, BUDW, and Cone Ranch projects in combination with various desalination options.
Also included in the study was the Tampa Bay Water Resource Recovery Project ("TBWRRP"), a project that was under consideration at the time Dr. Janicki prepared his report but that has since been dropped from Tampa Bay Water’s capital improvement plan.
Dr. Janicki assumed that BUDW would be operating at 8 mgd and that TBC would be operating under what was then the proposed withdrawal schedule for that project. He also utilized in all of the cumulative impact scenarios a reduced flow of 6 cfs in the Alafia River at Lithia and a reduced flow of 5 cfs in the Hillsborough River at Morris Bridge, to account for the predicted effects of the BUDW and Cone Ranch projects, respectively, upon stream flow.
Three distinct predictive techniques were employed in Dr. Janicki’s cumulative impact analysis: the District’s Tampa Bay Model; a series of regressions analyses; and a mass balance box model.
The Tampa Bay Model is a hydrodynamic water quality model developed for the District’s Surface Water Improvement and
Management department to predict the water quality response of Tampa Bay to changes in nutrient loading. Tampa Bay Water applied this model to estimate cumulative changes in salinity concentrations in Tampa Bay that might result from implementation of the Alafia River, TBC and TWRRP projects.
The months of May and September were used to represent dry and wet seasons over an average year. The modeling predicted that the Alafia River and TBC projects, without TWRRP, may increase salinity in lower Hillsborough Bay by approximately 0.4 ppt in May and 0.5 ppt in September. With TWRRP factored in, the increase may be 0.7 ppt in May and 0.8 ppt in September. In upper Hillsborough Bay, the salinity increase resulting from implementation of the Alafia River and TBC projects, without TWRRP, is estimated at 0.3 ppt in May and 0.7 ppt in September. With TWRRP included, the increases are estimated at 0.8 ppt in May and 1.0 ppt in September. As noted above, the TWRRP is no longer included in Tampa Bay Water’s list of planned projects.
The regression model was used to predict cumulative changes in salinity in Hillsborough Bay resulting from changes to freshwater inflow or "hydrologic load." The regression relationship used estimated monthly freshwater inflows to major bay segments and measured monthly salinity data from the HCEPC to relate total monthly inflows to monthly salinity concentrations at individual sampling locations. The Alafia River, TBC and TWRRP projects were considered.
The regression model predicted the cumulative effect of implementing the Alafia River and TBC projects to be an increase of between 0.6 and 1.0 ppt at the HCEPC monitoring sites and an average increase of 0.8 ppt across the model segment. This salinity fluctuation is well within the normal range of variability of any month’s salinity in Tampa Bay. With the effects of TWRRP included, the predicted changes in salinity are between 0.9 and 1.5 ppt, which is also within the typical ranges of salinity changes in the bay.
The third model utilized by Dr. Janicki was a mass balance box model. The mass balance approach used inputs and outputs of water and salinity to 13 segments within Tampa Bay to predict changes in salinity. In this model, Segment 5 (lower Hillsborough Bay) included the receiving water for the proposed desalination plant at Big Bend and Segment 4 (upper Hillsborough Bay) included the receiving area for the withdrawals from the TBC and TWRRP projects.
The mass balance model predicted that the cumulative effect of operating the TBC, Alafia River and TWRRP projects, plus a 20 mgd desalination plant at Big Bend, would be a salinity increase of 0.9 ppt in May and 0.9 ppt in September in Segment 5 (lower Hillsborough Bay). The same combination of projects resulted in predicted changes in salinity of 1.0 ppt in May and
1.2 ppt in September in Segment 4 (upper Hillsborough Bay).
Dr. Mark Luther prepared a report entitled "Potential Effects of Tampa Bay Water Surface Water Projects on Salinity and
Circulation in Tampa Bay: Results of the USF Three Dimensional Hydrodynamic Model," dated November 1998, hereinafter referred to as the "Luther Report." The Luther Report was included in a larger report entitled "Assessment of the Potential Impacts of the Tampa Bay Water Surface Water Projects on Tampa Bay," also dated November 1998.
Dr. Luther was first contacted in May or June 1998 to apply the three dimensional hydrodynamic model, a model of Tampa Bay developed and refined over a number of years at the University of South Florida ("USF"), to determine the potential changes in salinity and residual circulation in Tampa Bay that might result from Tampa Bay Water’s proposed surface water projects.
The USF model utilizes a grid of Tampa Bay comprising
57 grid cells in the "along-bay" direction and 40 grid cells in the "across-bay" direction. Each grid cell has 11 cells in the vertical direction, irrespective of the actual depth of the water within the grid cell.
The USF model utilizes three major boundary conditions or forcing functions: first, the water levels, temperature and salinity at the mouth of the bay, which are measured directly with instruments located at the north ends of Egmont Key and Anna Maria Island; second, the wind stress at the surface of the bay, which is measured with a series of wind sensors around the bay; and third, the freshwater inflows around the edges of the bay, which are measured or estimated from a series of USGS stage gages
on the various tributaries that flow into the bay, including the Alafia River.
Dr. Luther testified that if the model is run with these inputs, it will very accurately predict the water levels, temperature, salinity, and speed and direction of flow in each of the grid cells and in each of the 11 vertical levels within each grid cell.
The original model utilized 13 freshwater input locations around the edge of Tampa Bay. For this study, Dr. Luther added an additional 17 freshwater input points to more accurately represent the freshwater inflows. Direct precipitation and evaporation were also factored into the model for this project. Dr. Luther testified that the model was calibrated such that he was confident the model reasonably represents current salinities.
The model was run to establish a baseline for present- day flow conditions. The procedure was then repeated with the stream flow from the Hillsborough River, the Tampa Bypass Canal and the Alafia River reduced in accordance with the proposed withdrawal schedules for those projects. Dr. Luther then determined the monthly mean salinity and residual circulation in both the baseline model run and the withdrawal model run and calculated the difference to predict the changes that would result from the cumulative withdrawals from the surface water projects. Changes in salinity were calculated for the surface level of the 11 level vertical grid. The surface level is where
the influence of changes in freshwater inflows are expected to be most pronounced.
The predicted change in annual average salinity was an increase of 1.0 ppt or less throughout most of Tampa Bay. With the exception of Hillsborough Bay, the average surface salinity change in any one month is typically 0.5 ppt or less. These results were consistent with the earlier box model studies done by Dr. Janicki.
Dr. Luther testified that the largest effects of the surface water withdrawals are likely to occur in Hillsborough Bay, where most of the freshwater withdrawals would occur. On an annual basis, the predicted increase in surface water salinity in the majority of Hillsborough Bay is 1.0 ppt or less. Near the mouth of the Alafia River, the predicted increase is typically less than 0.75 ppt throughout the year. In McKay Bay, the annual average surface salinities are predicted to increase by 1.0 to
2.0 ppt. In the lower Hillsborough River, the annual average salinity increase is also on the order of 1.0 ppt.
Because the natural variability in salinity is nearly
10 times greater than the predicted change as indicated by the USF three dimensional hydrodynamic model, Dr. Luther concluded that the predicted changes in surface water salinity were not significant.
Dr. Luther described "tidal residual circulation" as the circulation of the currents in Tampa Bay that are left over after averaging several tidal periods. This residual circulation
is fundamentally responsible for the water quality of the bay and the flushing or residence time of the bay.
For a majority of Tampa Bay, the USF model predicted residual circulation changes of between 0% and 5%. Isolated grid cells show changes of 10% to 20%, but no area shows changes greater than 30%. Isolated grid cells within the main ship channel show changes of 50% to 55%, but only for one month out of the year.
Within Hillsborough Bay, the predicted changes in residual circulation are greatest in the northwestern corner of the bay, where changes reach 15% to 20% in August, and in the main ship channel in January. For portions of McKay Bay and the Palm River, predicted changes are in the range of 10% to 15%. Otherwise, predicted changes in residual circulation are less than 5%.
In all cases, Dr. Luther concluded that while there may be some impacts on tidal residual circulation as a result of the cumulative effects of the surface water projects, those predicted changes are not persistent and not widespread enough to significantly alter the water quality of Tampa Bay. In short, the predicted changes in residual circulation will not adversely affect the flushing time of the bay.
Dr. Luther concluded that the cumulative effect of the surface water projects will not cause quantitative or qualitative changes which adversely impact surface or groundwater resources, will not significantly induce saline water intrusion, and that
Tampa Bay Water has provided reasonable assurances on both of those issues.
Petitioners presented no credible evidence to contradict or refute the findings or conclusions of either
Dr. Janicki or Dr. Luther as to their cumulative impact analyses. The evidence offered by Petitioners on this issue was aimed at demonstrating that the cumulative impact analyses were insufficient because they did not analyze the potential impacts of the proposed regional reservoir, and thus failed to establish the reasonable assurances required by law.
Mr. Michael F. Kelley, a professional engineer and an expert in hydrology, testified that he was familiar with the "footprint" of the site selected for the proposed regional reservoir and that he performed a "very rough, rudimentary" hydrologic analysis of the effects of the footprint on two tributaries of the Alafia River, the Doe Branch and Chito Branch.
Mr. Kelley calculated that the proposed reservoir would have the effect of denying the Alafia River of 6 cfs of flow; that is, 6 cfs would not reach the proposed withdrawal point at Bell Shoals Road due to the reservoir.
Mr. Kelley’s testimony as to the effects of the proposed reservoir was qualified. He stated these were "order of magnitude" numbers that could be wrong by 25 percent, plus or minus, and that he would not "hang my hat on these numbers." Mr. Kelley acknowledged that he was not qualified to determine
whether a reduction in flow of 6 cfs was significant in terms of its effect on the environment.
Mr. Kelley conceded that, as an engineer, he would not attempt to use his rudimentary analysis to support a WUP or ERP application.
Mr. Kelley testified that his calculation of the 6 cfs figure failed to account for possible seepage from the proposed reservoir, because he assumed that seepage would be zero. He did not take into account information contained in the initial WUP application as to the potential maximum seepage from the proposed reservoir. During his testimony, Mr. Kelley performed a rough calculation based on the seepage estimates contained in the WUP application and as a result revised his estimate of the effect of the proposed reservoir downward from 6 cfs to 4 cfs. He acknowledged that he would not as a professional engineer, under any circumstances, use such a "quick and dirty" calculation to support a permit application.
Mr. Kelley also testified that the proposed reservoir could be designed such that there would be no change in the contribution of freshwater flows into the two tributaries.
Mr. Kelley testified that he would expect to be asked what effect the proposed reservoir might have on the withdrawal point at Bell Shoals Road if he were working on an ERP for the withdrawal location, but never testified that the potential effects of the proposed reservoir should or would be required to
be evaluated in connection with the WUP application for the Alafia River Project.
Dr. Ehringer, an expert in aquatic biology, ecology, estuarine ecology, and stream ecology, testified that there was no study of what he referred to as the "accumulative effects" of the Alafia River project, an impending deepening of the channel by someone other than Tampa Bay Water, a December 1997 acid spill from a Mulberry phosphate plant into the Alafia River, and other events.
Mr. Ken Webber, the District’s Chief Regulation Geologist, is responsible for the water use permitting program and oversees rulemaking and rule interpretation for the District in the area of water use permitting.
Mr. Webber explained that the cumulative impact analysis required in the water use permitting process is an analysis of the withdrawals sought in the permit application in combination with other existing withdrawals in the surrounding area. In assessing cumulative impacts, the District looks at existing sources and particularly at existing permitted sources. Mr. Webber testified that the effects of a proposed reservoir that is not yet built and for which no permit applications have yet been filed would be too speculative to take into account.
Mr. Webber further testified that the type of impacts, including reduced flow into streams, that might result from a regional reservoir are not the type of impacts considered in the WUP process, but that such impacts are considered in the ERP.
The WUP process considers the impacts of withdrawals of water from a source and the use of that water, whereas the ERP process examines the impacts of building things and how such construction affects flows.
Mr. Emery explained that the District, in assessing cumulative impacts for water use permitting purposes, considers the proposed withdrawal in combination with other existing withdrawals. He referred specifically to Section 4.2 of the Basis of Review, which sets forth the environmental impacts to be considered in evaluating proposed withdrawals. Projects considered in the cumulative impact analysis for water use permitting purposes are withdrawals that have or require a water use permit.
According to Mr. Emery, the work performed by Dr. Janicki and Dr. Luther to assess cumulative impacts,
including potential impacts of projects not yet permitted, goes well beyond that which the District could require to demonstrate reasonable assurances as to potential cumulative impacts.
Mr. Copeland, Tampa Bay Water’s project manager, also explained that the cumulative impact analysis deals with the effects of combined withdrawals of water.
The testimony of Mr. Webber, Mr. Emery, and Mr. Copeland as to the required scope of the cumulative impacts analysis is credited based on their greater experience in and superior knowledge of the water use permitting process, as well
as the consistency of their testimony with the District’s permitting criteria.
The testimony of Mr. Kelley and Dr. Ehringer is rejected as not consistent with the Basis of Review. The potential impacts of the reservoir will be considered during the ERP application process for that project. No information beyond Dr. Ehringer's allusive reference was provided as to the planned channel dredging.
As to the 1997 acid spill, Steven Grabe, an environmental supervisor for HCEPC in charge of sediment and benthic monitoring, testified that the benthic community appears to have fully recovered. No other evidence was offered as to the effects of the spill or the recovery therefrom. In any event, the District's witnesses are credited in that there was no requirement to examine the impact of the spill as part of the cumulative impact analysis for this WUP.
HYDROBIOLOGICAL MONITORING PLAN
Mr. Webber testified that the purpose of a hydrobiological monitoring plan ("HBMP") is to monitor the conditions of the river for any impacts caused by the permitted withdrawals.
Mr. Flannery defined an HBMP as a data collection program that the District puts in place after a permit is issued to ensure in the future that the permit conditions are complied with and to track the status of the resource over time.
Mr. Emery testified that an HBMP is not required to provide the reasonable assurances necessary for issuance of a water use permit. Those reasonable assurances are derived from the information submitted by the applicant. The purpose of the HBMP is to ensure compliance with the permit and with any permit conditions.
Dr. Janicki also testified that reasonable assurances are provided prior to permit issuance, and that the HBMP is used to assess compliance with the permit and the permit conditions.
Petitioners presented no evidence to support their contention that an HBMP is required to provide the reasonable assurances necessary for issuance of a water use permit.
DURATION OF PERMIT
Mr. Webber testified that the Alafia River project proposed permit was given an expiration date of December 31, 2010, to coincide with the expiration date of the Consolidated Permit. The District’s intention is to tie the expiration date of permits issued for new water sources to the expiration date of the Consolidated Permit. The District will then have a three- year period, from December 31, 2007 to December 31, 2010, to evaluate the performance of the interconnected system including the wellfields under the Consolidated Permit and the new water sources intended to reduce wellfield pumping.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this
proceeding, pursuant to Sections 120.569 and 120.57(1), Florida Statutes.
Petitioners, as citizens of the State of Florida, have standing to bring this proceeding pursuant to Section 403.412(5), Florida Statutes.
The District is a water management district in the State of Florida created and existing pursuant to Section 373.069, Florida Statutes, and other applicable law. The District is the governmental agency charged with the responsibility and authority to review and act upon the WUP application at issue, pursuant to Chapter 373, Part II, Florida Statutes, and Chapters 40D-1 and 40D-2, Florida Administrative Code.
This permit application is governed by the conditions for issuance found in Chapter 373, Part II, Florida Statutes, and Chapter 40D-2, Florida Administrative Code, and in the Basis of Review for Water Use Permit Applications, dated July 28, 1998 (the "Basis of Review"), adopted by reference in Rule 40D-2.091, Florida Administrative Code.
As the applicant and the party asserting an affirmative entitlement to issuance of a water use permit by the District, Tampa Bay Water has the burden of showing by a preponderance of the credible and credited evidence that it is entitled to that permit. Department of Transportation v. J.W.C. Company, Inc.,
396 So. 2d 778, 789 (Fla. 1st DCA 1981). In the context of this proceeding, Tampa Bay Water must provide reasonable assurances to
the District that the applicable conditions for issuance of the water use permit have been satisfied, in accordance with the applicable statutes and rules and the Basis of Review.
If Tampa Bay Water makes a prima facie showing of reasonable assurances, the burden shifts to Petitioners to present evidence of equivalent quality. J.W.C. Company, 396 So. 2d at 789. Petitioners cannot carry the burden of presenting contrary evidence by mere speculation concerning what "might" occur. Chipola Basin Protective Group, Inc. v. Department of Environmental Regulation, 11 FALR 467, 480-81 (December 30, 1988).
The standard for applicant’s burden of proof is one of reasonable assurances, not absolute guarantees, that the applicable conditions for issuance of the permit have been satisfied. Manasota-88, Inc. v. Agrico Chemical Co. and Florida Department of Environmental Regulation, 12 FALR 1319, 1325 (February 19, 1990).
"Reasonable assurances" contemplates a substantial likelihood that the project will be successfully implemented. Metropolitan Dade County v. Coscan Florida, Inc., 609 So. 2d 644, 648 (Fla. 3d DCA 1992).
In the context of potential for harm to state natural resources, Florida courts have allowed agencies flexibility in interpeting "reasonable assurances" and in applying individual permit standards based upon the totality of the circumstances.
Booker Creek Preservation, Inc. v. Mobil Chemical Co., 481 So. 2d 10, 13 (Fla. 1st DCA 1986).
The applicant is not required to eliminate all contrary possibilities or to address impacts which are only theoretical and could not be measured in real life; rather, an applicant must provide reasonable assurances which take into account contingencies that might reasonably be expected. Hoffert v. St. Joe Paper Co., 12 FALR 4972, 4987 (October 29, 1990).
To meet its burden, Tampa Bay Water must meet the requirements of Section 373.223, Florida Statutes, which provides in relevant part:
To obtain a permit pursuant to the provisions of this chapter, the applicant must establish that the proposed use of water:
Is a reasonable-beneficial use as defined in s. 373.019(13);
Will not interfere with any presently existing legal use of water; and
Is consistent with the public interest.
"Reasonable-beneficial use" is defined in Section 373.019(13), Florida Statutes, as "the use of water in such quantity as is necessary for economic and efficient utilization for a purpose and in a manner which is both reasonable and consistent with the public interest."
CONDITIONS FOR ISSUANCE OF PERMIT
The District has adopted Rule 40D-2.301, Florida Administrative Code, which implements Section 373.223(1), Florida
Statutes. In relevant part, Rule 40D-2.301, Florida Administrative Code, provides as follows:
In order to obtain a Water Use Permit, an Applicant must demonstrate that the water use is reasonable and beneficial, is in the public interest, and will not interfere with any existing legal use of water, by providing reasonable assurances, on both an individual and a cumulative basis, that the water use:
Is necessary to fulfill a certain reasonable demand;
Will not cause quantity or quality changes which adversely impact the water resources, including both surface and ground waters;
Will not cause adverse environmental impacts to wetlands, lakes, streams, estuaries, fish and wildlife, or other natural resources;
Will not cause water levels or rates of flow to deviate from the ranges set forth in Chapter 40D-8;
Will utilize the lowest quality water 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 utilize local resources to the greatest extent practicable;
Will incorporate water conservation measures;
Will incorporate reuse measures to the greatest extent practicable;
Will not cause water to go to waste; and
Will not otherwise be harmful to the water resources within the District.
The District has also adopted the Basis of Review, which clarifies and supplements the conditions for issuance of water use permits set forth in Rule 40D-2.301, Florida Administrative Code.
Necessary to Fulfill a Certain Reasonable Demand
The parties stipulated that the Alafia River Project is necessary to fulfill a certain reasonable demand.
Mr. Maxwell’s testimony as to the need to make up for lost supply due to mandated wellfield pumping reductions further demonstrates that the project is necessary to fulfill the demands of Tampa Bay Water’s six member governments.
Tampa Bay Water has provided reasonable assurances that the Alafia River Project is necessary to fulfill a certain reasonable demand.
Quantity/Quality Changes Adversely Impacting Water Resources
The greater weight of the evidence supports the conclusion that the Alafia River Project will not cause
quantitative or qualitative changes that adversely impact water resources within the District.
Tampa Bay Water presented evidence that it used extensive testing and monitoring data from several state and federal agencies to arrive at reliable calculations regarding the flows of the Alafia River. These calculations included an analysis of the river flows during "average," "dry," and "wet" years.
Based on the existing information, Tampa Bay Water used computer models to analyze the potential impacts on the stage of the river caused by withdrawals, and designed a withdrawal schedule to minimize those impacts.
The evidence indicated that Tampa Bay Water has arrived at a withdrawal schedule designed to protect the high flows and low flows of the river and to be sensitive to the estuarine system at the mouth of the river.
No credible evidence was offered to support the contention that the withdrawal schedule proposed by Tampa Bay Water would have any impact on navigation or other recreational uses of the river.
Tampa Bay Water provided reasonable assurances that dissolved oxygen, chlorophyll, and nutrient concentrations in the river will not be impacted by the withdrawals as proposed by Tampa Bay Water.
In summary, Tampa Bay Water has provided reasonable assurances that the Alafia River Project will not cause
quantitative or qualitative changes that adversely impact water resources within the District.
Adverse Environmental Impacts to Wetlands, Lakes, Streams, Estuaries, Fish and Wildlife, or Other Natural Resources
Section 4.2 of the Basis of Review sets forth the guidelines and performance standards utilized by the District in assessing environmental impacts.
Section 4.2.A.4 of the Basis of Review sets forth the following performance standards utilized to assess environmental impacts to wetlands:
Wet season water levels shall not deviate from their normal range.
Wetland hydroperiods shall not deviate from their normal range and duration to the extent that wetlands plant species composition and community zonation are adversely impacted.
Wetland habitat functions, such as providing cover, breeding, and feeding areas for obligate and facultative wetland animals shall be temporally and spatially maintained, and not adversely impacted as a result of withdrawals.
Habitat for threatened or endangered species shall not be altered to the extent that utilization by those species is impaired.
Section 4.2.C.1 of the Basis of Review sets forth the following performance standards utilized to assess environmental impacts to streams, which include rivers and estuaries:
Flow rates shall not deviate from the normal rate and range of fluctuation to the extent that water quality, vegetation, and small animal populations
are adversely impacted in streams and estuaries.
Flow rates shall not be reduced from the existing level of flow to the extent that salinity distributions in tidal streams and estuaries are significantly altered as a result of withdrawals.
Flow rates shall not deviate from the normal rate and range of fluctuation to the extent that recreational use or aesthetic qualities of the water resource are adversely impacted.
Tampa Bay Water acknowledged that a major concern under these criteria was salinity and tidal circulation changes, given that the Alafia River is affected by the tides of Tampa Bay. Tampa Bay Water studied the cumulative effects of this and two other projects on salinity and circulation in Tampa Bay.
Dr. Luther’s model predicted that the cumulative salinity changes caused by these projects would be minor compared to the natural deviations in salinity on the Alafia River. Dr. Luther’s model also predicted some impacts on residual circulation and flushing time, but not of such significance as to alter water quality.
Tampa Bay Water’s consultants also engaged in extensive field mapping of the vegetation in the Alafia River basin to evaluate potential effects of the project. The basic methodology of assessing the wetland areas where the greatest impact is expected was reasonable. Mr. Eliason, the wetlands scientist who performed this mapping and evaluation thereof, concluded that the predicted changes in salinity would have no adverse impact on the vegetation along the Alafia River, or on the fish and invertebrate communities in and around the Alafia River. His
conclusions were fully supported by Dr. Janicki, Mr. Emery, and Mr. Flannery. Even Petitioners’ ecology expert, Dr. Ehringer, agreed that if the predicted change in salinity is accurate, there will be no impacts on the biota of the river.
The greater weight of the evidence supports the conclusion that the Alafia River Project will not cause adverse environmental impacts.
Tampa Bay Water has provided reasonable assurances that the Alafia River Project will not cause adverse environmental impacts.
Deviation from Water Levels or Rates of Flow
The parties stipulated that the Alafia River Project would not cause water levels or rates of flow to deviate from the ranges set forth in Chapter 40D-8, Florida Administrative Code.
The District has not yet established minimum flows for the Alafia River. Special Condition 18 of the proposed WUP ensures that when such minimum flows are established, the withdrawals permitted under the WUP will be consistent with those minimum flows.
Tampa Bay Water has provided reasonable assurances that the Alafia River Project will not cause water levels or rates of flow to deviate from the ranges set forth in Chapter 40D-8, Florida Administrative Code.
Utilization of Lowest Quality of Water
The parties stipulated that the Alafia River Project utilizes the lowest quality water that Tampa Bay Water has the ability to use.
The record evidence supports the conclusion that no lower quality water is available that is technically and economically feasible for all or any portion of the proposed use.
Tampa Bay Water has provided reasonable assurances that the Alafia River Project utilizes the lowest quality of water that Tampa Bay Water has the ability to use.
Saline Water Intrusion
Section 4.5 of the Basis of Review provides the performance standards utilized by the District in evaluating whether a proposed withdrawal will cause significant saline water intrusion. Under that provision, significant saline water intrusion includes:
Movement of a saline water interface to a greater distance inland or towards a potable withdrawal than has historically occurred as a consequence of seasonal fluctuations, or
A sustained increase from background levels in solute concentrations.
Tampa Bay Water provided extensive analysis of these two issues based on the work of Dr. Janicki, Dr. Luther, and Mr. Copeland, as discussed in the findings of fact above.
The testing and modeling performed by these experts and reviewed by the District consistently predicted that the saltwater interface would move upstream slightly, but not beyond
the range of its natural movement, as a result of the proposed withdrawals and that the predicted increases in salinity in the river, the estuary and the bay are, in all cases, well within the natural range of fluctuation.
Tampa Bay Water has provided reasonable assurances, by the overwhelming weight of the evidence, that the Alafia River Project will not significantly induce saline water intrusion.
Pollution of the Aquifer
The parties stipulated that the Alafia River Project will not cause pollution of the aquifer.
The record evidence supports the conclusion that the Alafia River Project will not cause pollution of the aquifer.
Tampa Bay Water has provided reasonable assurances that the Alafia River Project will not cause pollution of the aquifer.
Adverse Impacts to Existing Offsite Land Uses
The parties stipulated that the Alafia River Project will not adversely impact offsite land uses existing at the time of the application.
The record evidence supports the conclusion that the Alafia River Project will not adversely impact offsite land uses existing at the time of the application.
Tampa Bay Water has provided reasonable assurances that the Alafia River Project will not adversely impact offsite land uses existing at the time of the application.
(i) Adverse Impacts to Existing Legal Withdrawals
The parties stipulated that the Alafia River Project will not adversely impact any existing legal withdrawals.
The record evidence supports the conclusion that the Alafia River Project will not adversely impact any existing legal withdrawals.
Tampa Bay Water has provided reasonable assurances that the Alafia River Project will not cause unmitigated adverse impacts to any existing legal withdrawals.
Utilization of Local Resources to Greatest Extent Practicable
The parties stipulated that the Alafia River Project will utilize local resources to the greatest extent practicable.
The Alafia River is located primarily within the jurisdictional boundaries of Tampa Bay Water and entirely within the jurisdictional boundaries of the District.
The Alafia River Project does not rely upon any water resources remote from the local area of use.
Tampa Bay Water has provided reasonable assurances that the Alafia River Project utilizes local resources to the greatest extent practicable.
Incorporation of Water Conservation Measures
The parties stipulated that the Alafia River Project will incorporate water conservation measures.
In addition, Mr. Maxwell’s testimony and the Public Supply Supplemental Document submitted by Tampa Bay Water with
the WUP application establish that the project will incorporate an aggressive conservation program.
Tampa Bay Water has provided reasonable assurances that the Alafia River Project will incorporate water conservation measures.
Incorporation of Reuse Measures
The parties stipulated that the Alafia River Project will incorporate reuse measure to the greatest extent practicable.
The Public Supply Supplemental Document submitted by Tampa Bay Water with the WUP Application establishes that the project will incorporate reuse measures to the greatest extent practicable.
Tampa Bay Water has provided reasonable assurances that the Alafia River Project will incorporate reuse measures to the greatest extent practicable.
Not Cause Water to Go to Waste
The parties stipulated that the Alafia River Project will not cause water to go to waste.
"Waste" is defined in Section 4.12, Basis of Review, as "the causing of excess water to run into a surface water system, unless the water is thereafter put to beneficial use."
The record evidence supports the conclusion that the Alafia River Project will not cause water to go to waste, as that term is used in Section 4.12, Basis of Review.
Tampa Bay Water has provided reasonable assurances that the Alafia River Project will not cause water to go to waste.
Not Otherwise Harmful to Water Resources
The parties stipulated that the Alafia River Project will not otherwise be harmful to the water resources within the District.
The record evidence supports the conclusion that the Alafia River Project will not otherwise be harmful to the water resources within the District.
Tampa Bay Water has provided reasonable assurances that the Alafia River Project will not otherwise be harmful to the water resources within the District.
CUMULATIVE IMPACTS
Rule 40D-2.301, Florida Administrative Code, requires Tampa Bay Water to provide reasonable assurances, on both an individual and a cumulative basis, that the conditions for issuance have been satisfied.
Petitioners contended that Tampa Bay Water’s cumulative impacts assessments were insufficient insofar as they failed to take into account the effects, if any, of the proposed regional reservoir. In addition, Dr. Ehringer suggested that the studies should also have considered what he described as an impending dredging activity by a third party that is to occur near the mouth of the Alafia River. He provided no details as to this dredging activity and there was no further evidence on this subject.
Tampa Bay Water and the District contended that the cumulative impacts to be assessed are only the impacts of existing withdrawals, not proposed projects or matters such as the 1997 acid spill. They argued that Tampa Bay Water did more than was required because it assessed on a cumulative basis not only existing withdrawals, but the TBC and BUDW projects which had not yet been permitted, as well as various possible desalination facilities for which no permit application had even been filed.
Section 4.2 of the Basis of Review provides, in relevant part:
The withdrawal of water must not cause unacceptable adverse impacts to environmental features. Where appropriate, District staff will review the Applicant’s submittal and identify the environmental features that are directly related to the water resources of the District and evaluate the impact of the Applicant’s withdrawal, combined with other withdrawals, on those environmental features.
District staff may inspect the site to delineate environmental features and evaluate the effects of withdrawals. For certain permits, the applicant may be required to supply additional information regarding the existing status and condition of associated environmental features. This information may consist of aerial photographs, topographic maps, hydrologic data, environmental assessments or other relevant information.
Baseline hydrologic and/or environmental data collected prior to permit application shall be provided if available and requested by the District. The need for additional information may be established through pre- application meetings with the District.
Potential environmental impacts will be evaluated by comparing the existing natural system to the predicted post-withdrawal
conditions. Previous physical alterations to the environmental features, such as drainage systems or water control structures will be considered. The District’s objective is to achieve a reasonable degree of protection for environmental features consistent with the overall protection of the water resources of the District. (Emphasis added.)
These provisions of the Basis of Review support the conclusion that the cumulative impacts assessment required by Rule 40D-2.301, Florida Administrative Code, is an assessment of the proposed withdrawal in combination with other existing withdrawals, including previous physical alterations. Thus, the prospective impacts, if any, of the proposed regional reservoir were not required to be included in the analysis of cumulative impacts in this case. Tampa Bay Water was not required to speculate on the potential impact of a reservoir whose location had not even been finally decided at the time this application was submitted.
The cumulative impacts analyses submitted by Tampa Bay Water were adequate to assess the impacts of the proposed withdrawals in combination with other existing and imminent withdrawal projects. To the extent the cumulative impact studies utilized the likely requested withdrawal quantities of the BUDW (8 mgd) and TBC projects, and include the TWRRP then under consideration, they overstated the amount of freshwater that will be cumulatively withdrawn. The BUDW project was ultimately approved for a proposed permit at 6 mgd, the TBC project was in fact permitted at a modified, more conservative withdrawal
schedule than was requested, and the TWRRP has since been abandoned by Tampa Bay Water.
HYDROBIOLOGICAL MONITORING PLAN
Petitioners contended that Tampa Bay Water has not provided the requisite reasonable assurances for issuance of the proposed permit because the HBMP is not required to be submitted to and approved by the District at specified time following permit issuance.
All of the District’s witnesses, Messrs. Webber, Flannery and Emery, testified that the purpose of an HBMP is not to provide the reasonable assurances required as a condition of permit issuance, but to ensure compliance with the permit and its conditions after issuance.
This position is confirmed in Section 5.0 of the Basis of Review, which governs monitoring requirements. The preface to that section:
Issuance of a Water Use Permit requires that
(1) the withdrawals will not cause any unmitigated adverse impacts on the water resources and existing legal users, and (2) the use continues to be in the public interest. To ensure that these criteria continue to be met after a permit is issued, monitoring and reporting activities may be required as conditions of the permit. Where appropriate, the District’s monitoring requirements may be satisfied using facilities required by other agencies. (Emphasis added.)
In this case, the uncontroverted testimony is that the construction period for the withdrawal structure is approximately two to two and one-half years. No water can be withdrawn prior
to completion of the withdrawal structure. Under the provisions of Special Condition 8, the HBMP must be submitted to the District for approval within 120 days of permit issuance and the HBMP must be approved by the District prior to implementation of the project.
Petitioners offered no basis upon which to conclude that the HBMP must be fully detailed and approved by the District prior to, or as a condition of, permit issuance.
DURATION OF PERMIT
Section 373.236, Florida Statutes, governs the duration of water use permits and provides, in relevant part, as follows:
Permits shall be granted for a period of
20 years, if requested for that period of time, if there is sufficient data to provide reasonable assurance that the conditions for permit issuance will be met for the duration of the permit; otherwise, permits may be issued for shorter durations which reflect the period for which such reasonable assurances can be provided. The governing board or the [Department of Environmental Protection] may base the duration of permits on a reasonable system of classification according to source of supply or type of use, or both.
The governing board or the [Department
of Environmental Protection] may authorize a permit of duration of up to
50 years in the case of a municipality or other governmental body or of a public works or public service corporation where such a period is required to provide for the retirement of bonds for the construction of waterworks and waste disposal facilities.
Rule 40D-2.321, Florida Administrative Code, implements this statutory provision, and provides, in relevant part:
The District shall determine the duration of a Water Use Permit based on the degree and likelihood of potential adverse impacts to the water resource or existing users.
The duration of a water use permit shall not exceed six years when:
the permit is for a new use greater than or equal to 500,000 gpd;
the District determines there is a potential for significant adverse impacts and further evaluation is needed to develop an effective mitigation plan; or
the permit is for a renewal to significantly increase quantities.
The duration of a water use permit shall not exceed 10 years when:
the permit is for a new use less than 500,000 gpd;
the permit is for a renewal with an effective mitigation plan to address potential adverse impacts; or
the permit is for a renewal with no significant modification.
If the District determines that a permit term longer than 10 years is appropriate based on the facts presented by an applicant, the District shall issue a permit for a period up to 50 years in accordance with Section 373.236, F.S.
The expiration date of the proposed permit in this case was tied to the expiration date of the Consolidated Permit for the wellfields in accordance with the Partnership Agreement, the intention being to have a single permit expiration date for all phases of Tampa Bay Water’s undertaking. It is concluded that the desire for a single expiration date is reasonable and justifies a permit duration of 11 years in this case. The proposed permit duration is clearly within the scope of authority contemplated by Section 373.236, Florida Statutes, and Rule 40D- 2.321, Florida Administrative Code.
STANDARD PERMIT CONDITIONS
Petitioners contended that the proposed WUP violates the standard permit conditions required by District rules, but pointed to no specific condition that was contravened. Rule 40D- 2.381, Florida Administrative Code, sets forth the standard permit conditions. It is not necessary here to set forth in detail the various standard conditions that are required to be included in every permit. It is concluded that the proposed WUP does not violate the standard permit conditions found in Rule
40D-2.381, Florida Administrative Code.
MINIMUM FLOWS AND LEVELS
Petitioners also contended that the proposed WUP violates the provisions of Chapter 40D-8, Florida Administrative Code. Chapter 40D-8 governs minimum flows and levels, and requires the District to establish minimums flows and levels for various water resources including the Alafia River.
The record evidence established that the District anticipates establishing minimum flows for the Alafia River, but has yet to do so. Special Condition 18 of the proposed WUP states that "All withdrawals from the Alafia River shall be consistent with the adopted minimum flow." Thus, Tampa Bay Water will be required to comply with any minimum flows and levels that are subsequently adopted by the District.
The proposed WUP does not contravene the provisions of Chapter 40D-8, Florida Administrative Code.
STATE CANOE TRAIL DESIGNATION
Petitioners contended that the proposed WUP violates the provisions of Chapter 260, Florida Statutes, the "Florida Greenways and Trails Act."
Specifically, Petitioners contended that the proposed permit violates Section 260.018, which provides in relevant part:
All agencies of the state, regional planning councils through their comprehensive plans, and local governments through their local comprehensive planning process pursuant to chapter 163 shall recognize the special character of publicly owned lands and waters designated by the state as greenways and trails and shall not take any action which will impair their use as designated.
The record evidence established that the Alafia River is a state-designated canoe trail and a part of the Greenways and Trails System established by Chapter 260, Florida Statutes. The designated canoe trail is that portion of the Alafia River from somewhere near the withdrawal location at Bell Shoals Road upstream to Aldermans Ford Park.
The testimony of Mr. Copeland, Mr. Emery, and
Mr. Flannery established that the project will have only minimal impacts, on the order of three to four inches or less, on the level of the Alafia River. The most significant of these impacts will only occur at periods of high flow, when the river will already have risen six to nine feet.
Mr. Scheffer, Petitioners’ river recreation expert, lacked adequate knowledge or expertise to opine as to the extent to which the level of the river would be affected by the proposed withdrawals.
His testimony and that of Ms. Cribbs and Ms. Morris as to their observations of river conditions is credited, but is irrelevant to the issues presented for decision. None of Petitioners’ witnesses was able to relate the conditions observed by these individuals to any measured or measurable flow or level of the river at the time the observations were made. No evidence established that the conditions described by Ms. Cribbs or
Mr. Scheffer as "high" or "low" occurred at a time when the flow at Bell Shoals Road was greater than or less than 124 cfs.
Absent that information, the evidence presented by these witnesses cannot be related to the issues in this case, which involve the potential impacts of the proposed withdrawals, because no withdrawals are permitted unless the flow at Bell Shoals Road is at least 124 cfs.
Ms. Morris’ observations of the river conditions were made at a time when, according to her reasonable calculations,
the flow in the river was approximately 50 to 55 cfs. The proposed WUP does not permit any withdrawals from the river under such conditions. Ms. Morris testimony is credited but nonetheless irrelevant.
The greater weight of the credible and credited evidence establishes that the Alafia River Project will not impair the use of the river for recreational purposes. Thus, there is no need to determine whether Tampa Bay Water or the District is an "agency of the state" or a "local government" within the meaning of Section 260.018; what form of "recognition," if any, is required by the statute; or whether Section 260.018 conflicts with Chapter 373, Florida Statutes.
CONCLUSION
Tampa Bay Water has provided reasonable assurances on both an individual and a cumulative basis that the Alafia River Project meets all applicable conditions for issuance of water use permits as set forth in Chapter 373, Florida Statutes, and Rule 40D-2.301, Florida Administrative Code, and other applicable law.
Petitioners did not provide credible evidence that the Alafia River Project would violate any of the applicable permitting statutes or rules, or any other applicable law.
RECOMMENDATION
Upon the foregoing findings of fact and conclusions of law, it is recommended that the Southwest Florida Water Management District enter a final order determining that Tampa Bay Water has satisfied the requirements of Section 373.223, Florida Statutes,
and Rule 40D-2.301, Florida Administrative Code, regarding conditions for issuance of water use permits, and issue Water Use Permit No. 2011794.00 to Tampa Bay Water.
DONE AND ENTERED this 2nd day of July, 1999, in Tallahassee, Leon County, Florida.
LAWRENCE P. STEVENSON
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 2nd day of July, 1999.
COPIES FURNISHED:
E. D. "Sonny" Vergara Executive Director Southwest Florida Water
Management District 2379 Broad Street
Brooksville, Florida 34609-6899
Donald D. Conn, General Counsel Tampa Bay Water
2535 Landmark Drive, Suite 211
Clearwater, Florida 33761
Anthony Mutchler, Esquire Mark Lapp, Esquire
Southwest Florida Water Management District 2379 Broad Street
Brooksville, Florida 34609-6899
Richard A. Harrison, Esquire Allen, Dell, Frank & Trinkle, P.A. Post Office Box 2111
Barnett Plaza, Suite 1240
101 East Kennedy Boulevard Tampa, Florida 33601-2111
Alafia River Basin Stewardship Council, Inc. Cheryl Bradford, Registered Agent
11215 McMullen Loop
Riverview, Florida 33569
Melody R. Higgins 1115 Myrtle Road
Valrico, Florida 33594
Steven Rossiter
11120 Casa Loma Drive Riverview, Florida 33569
John Sherman
11118 Casa Loma Drive Riverview, Florida 33569
Ronald S. McClain Qualified Representative 4421 Gentrice Drive
Valrico, Florida 33594
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 | Proceedings |
|---|---|
| Aug. 09, 1999 | (L. Jacobus) Missing pages 76 and 77 (Recommended Order) filed. |
| Aug. 02, 1999 | Notice of Entry of Final Order; Final Order filed. |
| Jul. 02, 1999 | Recommended Order sent out. CASE CLOSED. Hearing held 04/05-09/98. |
| May 17, 1999 | Notice of Filing Joint Proposed Recommended Order of Respondents Tampa Bay Water and the Southwest Florida Water Management District; Recommended Order (for Judge Signature); Disk filed. |
| May 12, 1999 | Tampa Bay Water`s Unopposed Motion to Correct Transcript of Proceedings filed. |
| May 05, 1999 | (Volume 5) Transcript of Proceedings filed. |
| Apr. 28, 1999 | Transcript of Proceedings Volume 3B Afternoon Session ; Transcript of Proceedings Volume 3A Morning Session ; Notice of Filing Final Hearing filed. |
| Apr. 23, 1999 | Transcript of Proceedings Volume IV ; Notice of Filing Final Hearing filed. |
| Apr. 22, 1999 | (Volume II) Transcript of Proceedings filed. |
| Apr. 19, 1999 | Transcript of Proceedings ; Notice of Filing Final Hearing filed. |
| Apr. 13, 1999 | Letter to Judge Stevenson from R. Harrison Re: Evidence (filed via facsimile). |
| Apr. 13, 1999 | (3 Boxes) Tampa Bay Water Exhibits filed. |
| Apr. 12, 1999 | Order Closing File in Case No. 98-4929 sent out. CASE CLOSED. |
| Apr. 12, 1999 | Case: 98-004929 unconsolidated. |
| Apr. 05, 1999 | CASE STATUS: Hearing Held. |
| Apr. 05, 1999 | Tampa Bay Water`s Response to Petitioners` First Request for Production of Documents filed. |
| Mar. 29, 1999 | Tampa Bay Water`s Notice of Filing Returns of Service; (4) Affidavit of Service; (4) Subpoena Duces Tecum (filed via facsimile). |
| Mar. 26, 1999 | (R. Harrison) Notice of Telephonic Hearing (3/29/99; 10:30 a.m.) (filed via facsimile). |
| Mar. 26, 1999 | Tampa Bay Water`s Response in Opposition to Petitioners` Motion for Continuance (filed via facsimile). |
| Mar. 26, 1999 | (R. Harrison, R. McClain, A. Mutchler) Prehearing Stipulation filed. |
| Mar. 26, 1999 | (R. McClain) Request for Expedited Hearing on Motion for Continuance (filed via facsimile). |
| Mar. 25, 1999 | Order sent out. (Tampa Bay Water`s Motion to exclude testimony of certain of Petitioners` witnesses is denied) |
| Mar. 25, 1999 | (R. McClain) Motion for Continuance (filed via facsimile). |
| Mar. 24, 1999 | Petitioner`s Response to Respondent Tampa Bay Water`s Motion to Exclude Testimony of Certain of Petitioners` Witnesses (filed via facsimile). |
| Mar. 23, 1999 | Tampa Bay Water`s Notice of Taking Depositions (Duces Tecum) (filed via facsimile). |
| Mar. 22, 1999 | Tampa Bay Water`s Amended Notice of Taking Depositions (Duces Tecum) (filed via facsimile). |
| Mar. 18, 1999 | Tampa Bay Water`s Notice of Taking Depositions (Duces Tecum) filed. |
| Mar. 18, 1999 | Tampa Bay Water`s Motion to Exclude Testimony of Certain of Petitioners` Witnesses filed. |
| Mar. 16, 1999 | Tampa Bay Water`s Motion for Recommended Order of Dismissal as to Petitioner John Mohme for Mootness (filed via facsimile). |
| Mar. 12, 1999 | Case 98-004927, Unconsolidated due to closing. |
| Mar. 12, 1999 | Case 98-004928, Unconsolidated due to closing. |
| Mar. 09, 1999 | Petitioners Notice of Serving of First Set of Interrogatories to Respondent, Tampa Bay Water; Petitioners First Set of Interrogatories to Respondent Tampa Bay Water rec`d |
| Mar. 05, 1999 | Petitioners First Request for Production of Documents to Respondent Tampa Bay Water (filed via facsimile). |
| Mar. 05, 1999 | Petitioners First Set of Interrogatories to Respondent Tampa Bay Water (filed via facsimile). |
| Mar. 05, 1999 | Petitioners Notice of Serving of First Interrogatories to Respondent, Tampa Bay Water (filed via facsimile). |
| Mar. 05, 1999 | Petitioners Notice of Serving of First set of Interrogatories to Respondent, Southwest Florida Water Management District rec`d |
| Mar. 05, 1999 | Petitioners First Request for Production of Documents to Respondent Southwest Florida Water Management District rec`d |
| Mar. 05, 1999 | Response in Opposition to Motion for Continuance with cover letter rec`d |
| Mar. 01, 1999 | (Petitioner) Motion for Continuance (filed via facsimile). |
| Feb. 25, 1999 | (Tampa Bay Water) Notice of Taking Deposition (Duces Tecum) filed. |
| Feb. 22, 1999 | Stipulation to Dismissal (filed via facsimile). |
| Feb. 22, 1999 | Stipulation to Voluntary Dismissal (filed via facsimile). |
| Feb. 10, 1999 | (R. Harrison) Notice of Taking Depositions (Duces Tecum) filed. |
| Jan. 26, 1999 | (Petitioner) Response to Tampa Bay Water Motion to Compel (filed via facsimile). |
| Jan. 25, 1999 | Order sent out. (R. McClain Accepted as Qualified Representative) |
| Jan. 20, 1999 | Tampa Bay Water`s Motion to Compel filed. |
| Jan. 20, 1999 | (Petitioner) Amendment to Request for Representation by Qualified Representative (filed via facsimile). |
| Dec. 31, 1998 | Southwest Florida Water Management District`s Response to Request for Representation by Qualified Representative filed. |
| Dec. 17, 1998 | Tampa Bay Water`s Response to Request for Representation by Qualified Representative filed. |
| Dec. 17, 1998 | Tampa Bay Water`s Notice of Serving First Set of Interrogatories to Petitioner, John Sherman filed. |
| Dec. 17, 1998 | Tampa Bay Water`s Notice of Serving First Set of Interrogatories to Petitioner, Joann Missant; Tampa Bay Water`s Notice of Serving First Set of Interrogatories to Petitioner, Steven D. Rossiter filed. |
| Dec. 17, 1998 | Tampa Bay Water`s Notice of Serving First Set of Interrogatories to Petitioner, Melody R. Higgins; Tampa Bay Water`s Notice of Serving First Set of Interrogatories to Petitioner, Trudy Kensinger filed. |
| Dec. 17, 1998 | Tampa Bay Water`s Notice of Serving First Set of Interrogatories to Petitioner, John R. Mohme; Tampa Bay Water`s Notice of Serving First Set of Interrogatories to Petitioner, Alafia River Basin Stewardship Council, Inc. filed. |
| Dec. 17, 1998 | Respondent, Tampa Bay Water`s, First Request for Production of Documents to Petitioner John Sherman; filed. |
| Dec. 17, 1998 | Respondent, Tampa Bay Water`s, First Request for Production of Documents to Petitioner Joann Missant; Respondent, Tampa Bay Water`s, First Request for Production of Documents to Petitioner Steven D. Rossiter filed. |
| Dec. 17, 1998 | Respondent, Tampa Bay Water`s, First Request for Production of Documents to Petitioner Melody R. Higgins; Respondent, Tampa Bay Water`s, First Request for Production of Documents to Petitioner Trudy Kensinger filed. |
| Dec. 17, 1998 | Respondent, Tampa Bay Water`s, First Request for Production of Documents to Petitioner John R. Mohme; Respondent, Tampa Bay Water`s, First Request for Production of Documents to Petitioner Alafia River Basin Stewardship Council, Inc. filed. |
| Dec. 09, 1998 | (Petitioner) Request for Representation by Qualified Representative (filed via facsimile). |
| Nov. 25, 1998 | Corrected Notice of Final Hearing sent out. (hearing set for April 5-9, 1999; 9:30am; Tampa) |
| Nov. 24, 1998 | (SWFWMD) Amended Response to Initial Order (filed via facsimile). |
| Nov. 23, 1998 | Notice of Final Hearing sent out. (hearing set for April 5-9, 1999; 9:30am; Tampa) |
| Nov. 23, 1998 | Prehearing Order sent out. |
| Nov. 23, 1998 | Order of Consolidation sent out. (Consolidated cases are: 98-4925, 98-4926, 98-4927, 98-4928, 98-4929, 98-4930 & 98-4931) |
| Nov. 17, 1998 | Joint Response to Initial Order (filed via facsimile). |
| Nov. 16, 1998 | (Petitioner) Consolidated Response to Initial Order (filed via facsimile). |
| Nov. 16, 1998 | (Petitioner) Response to Tampa Bay Water`s Motion to Consolidate (filed via facsimile). |
| Nov. 09, 1998 | Tampa Bay Water`s Motion to Consolidate; Cover Letter filed. |
| Nov. 06, 1998 | Initial Order issued. |
| Nov. 04, 1998 | Respondent`s Motion to Consolidate; Notice of Referral; Petition for Section 120.57 Formal Hearing; Agency Action Letter filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 29, 1999 | Agency Final Order | |
| Jul. 02, 1999 | Recommended Order | Applicant, Tampa Bay Water, provided reasonable assurances that its proposed Alafia River withdrawal project meets conditions set forth in Chapter 373, Florida Statutes, and Rule 40D-2.301, Florida Administrative Code. |
