STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MIAMI CORPORATION and VERGIE CLARK, | ) ) | |
Petitioners, vs. | ) ) ) ) Case | Nos. 05-0344 |
) | 05-2607 | |
CITY OF TITUSVILLE and ST. | ) | 05-2940 |
JOHNS RIVER WATER MANAGEMENT DISTRICT, Respondents. | ) ) ) ) |
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its designated Administrative Law Judge, J. Lawrence Johnston, held a final hearing in the above-styled case on December 11-15, and 18-21, 2006, and January 16-19 and 22-26,
and April 4-6 and 9-10, 2007, in Titusville, Florida.
APPEARANCES
For Petitioner, Miami Corporation:
Frederick L. Aschauer, Jr., Esquire Chris H. Bentley, Esquire
John L. Wharton, Esquire
Rose, Sundstrom & Bentley, LLP Post Office Box 1567 Tallahassee, Florida 32302-1567
For Petitioner, Vergie Clark:
J. Stephen Menton, Esquire
Rutledge, Ecenia, Purnell & Hoffman, P.A. Post Office Box 551
Tallahassee, Florida 32302-0551
For Respondent, City of Titusville:
Vivian Arenas, Esquire
Edward P. de la Parte, Jr., Esquire Nicolas Q. Porter, Esquire
de la Parte & Gilbert, P.A.
101 East Kennedy Boulevard, Suite 3400 Post Office Box 2350
Tampa, Florida 33601-2350
For Respondent, St. Johns River Water Management District: Karen C. Coffman, Esquire
Thomas I. Mayton, Jr., Esquire Mary Ellen Winkler, Esquire
St. Johns River Water Management District 4049 Reid Street
Palatka, Florida 32177-2529 STATEMENT OF THE ISSUE
The issue in this case is whether the St. Johns River Water Management District (District) should issue a consumptive use permit (CUP) in response to Application Number 99052 filed by the City of Titusville and, if so, what CUP terms are
appropriate.
PRELIMINARY STATEMENT
On March 6, 2001, the City of Titusville (City) submitted an application to modify CUP 10647. Included in this application was a proposal to add a new Area IV Wellfield in northwest Brevard County to the City's existing Area II and Area
III Wellfields. The District issued a series of seven Requests for Additional Information (RAIs) between April 5, 2001, and March 23, 2004.
The District accepted the City's RAI submissions, which included analytical groundwater flow and solute transport modeling ("Multi-Layer/SURFDOWN" and "UPCONE", respectively), as providing reasonable assurance that permit criteria were met.
On December 15, 2004, the District issued its initial Technical Staff Report (TSR) for the application to modify CUP 10647.
That TSR proposed to authorize the use of 2.75 mgd from the Upper Floridan Aquifer System (UFAS) and 0.18 mgd of groundwater from the surficial aquifer system (SAS) from the proposed Area IV Wellfield and 3.3 mgd of groundwater from the SAS from the existing Area II and Area III Wellfields to serve a projected population of 56,565 in 2008. There was no request to extend or renew the permit, which expires February 10, 2008.
Miami Corporation filed a petition challenging this TSR and proposed CUP, and the matter was referred to DOAH. Vigorous motion practice and discovery began, details of which can be obtained from DOAH's online docket if desired. Among other things, Miami criticized the City's models as not providing reasonable assurance, while the City and the District maintained reasonable assurance had been given. Miami Corporation's petition was scheduled for a final hearing in June 2005.
On May 13, 2005, the City submitted a revised application for a separate Individual CUP 99052 for the Area IV Wellfield, rather than modifying its existing CUP 10647 to include the new wellfield, with a permit expiration of December 31, 2010. On May 25, 2005, the staff issued a revised TSR. That TSR proposed a new permit to authorize up to 2.75 mgd of groundwater from the UFAS and 0.178 mgd of groundwater from the SAS from the proposed Area IV Wellfield to serve a projected population of 59,660 in 2010. The revised TSR noted that the proposed permit expiration date for the Area II and Area III Wellfields would remain February 10, 2008.
After the District issued the revised TSR, the final hearing scheduled in June 2005 was continued until September 2005. In July 2005, Vergie Clark filed a petition challenging the TSRs. Because notice of the initial TSR was insufficient to foreclose it, her petition survived motions to dismiss for being untimely, and the final hearing was continued again until February 2006 to allow her to conduct discovery and hearing preparation. As the case proceeded towards a February 2006 final hearing on the pending petitions, the City eventually attempted to develop additional numerical groundwater flow (MODFLOW) and solute transport (SEAWAT 2.1) modeling of the Area IV Wellfield to support its revised application, as described in more detail in the Findings of Fact. The scheduled final
hearing was continued until September 2006 to allow time for this work to be completed, discovered, and evaluated.
On March 14, 2006, the City again revised its application based on new modeling. Despite Petitioners' continued criticisms, the District issued a second revised TSR on May 1, 2006. This TSR recommended that a CUP be issued for 2.75 mgd of groundwater from the UFAS and .18 mgd of groundwater from the SAS for wetland hydration and aquifer recharge from the Area IV Wellfield on an annual average basis to serve a projected population of 63,036 in 2010. This TSR provided that the proposed permit would expire December 31, 2010.
Discovery of the new modeling and other matters continued during the summer of 2006. During a deposition in July 2006, the District's consultant recommended that the District require the City to perform another solute transport model simulation (also termed a "sensitivity run"). This simulation was produced in early August 2006.
Petitioners continued to criticize the City's modeling, including the use of SEAWAT 2.1 instead of the newer version, SEAWAT 2000, as well as the use of chloride concentrations as inputs for its SEAWAT 2.1 model simulations instead of total dissolved solids (TDS). As a result of Petitioners' criticisms, the City had SDI re-run its SEAWAT 2.1 models in late
August 2006 using SEAWAT 2000 (which the City and the District also termed "sensitivity runs.")
Because the SEAWAT 2000 simulations would be time-barred from use in the City's case-in-chief under pre-hearing requirements, and whether they could be used in rebuttal could not be determined at that point in time, the City requested another continuance, this time until December 2006, to give Petitioners time to discover and evaluate the SEAWAT 2000 model simulations.
On August 25, 2006, the District moved for official recognition of the pertinent Florida Statutes and Florida Administrative Code Rules, which was granted on November 20, 2006.
The final hearing was held in Titusville on December 11-15 and 18-21, 2006, and January 16-19 and 22-26, 2007, but could not be completed in that time. The rest of the hearing was rescheduled and held in Titusville on April 4-6 and 9-10, 2007.
At the final hearing, the City presented testimony from: Patrick A. Barnes, P.G., who was accepted as an expert in the fields of geology, hydrogeology, water resource evaluation, and water supply development; Phillip R. Davis, who was accepted as an expert in the fields of hydrology and modeling in general; George McLatchey, who was accepted as an expert in the fields of ecology, environmental science, soil and water science, and
wildlife biology; Courtney Harris, AICP, who was accepted as an expert in the fields of local and regional planning, land use and development and socioeconomic projections; John A. Peterson, who was accepted as an expert in the fields of water and wastewater utility management; Raynetta Curry Grant, P.E., DEE, who was accepted as an expert in the fields of environmental engineering, civil engineering, and water and wastewater utility management; and Gerald C. Hartman, P.E., DEE, who was accepted as an expert in the fields of environmental engineering, water resource evaluation, utility system analysis, and water and wastewater facility design. In addition, the City presented portions of deposition testimony of Miami Corporation’s corporate representative, Earl Underhill.1
The District presented testimony from: Peter S. Huyakorn, Ph.D., who was accepted as an expert in the fields of groundwater flow and solute transport modeling; Richard H. Burklew, Jr., P.G., who was accepted as an expert in the fields of hydrogeology and CUP permitting and regulations; Marc Minno, Ph.D., who was accepted as an expert in the fields of botany, biology, ecology, and St. Johns River Water Management District CUP permitting relating to environmental assessment; Richard L. Doty, who was accepted as an expert in the fields of forecasting population growth and water use; David Toth, Ph.D., P.G., who was accepted as an expert in the fields of hydrogeology and
groundwater quality; and Dwight Jenkins, J.D., P.G., who was accepted as an expert in the fields of hydrogeology, and consumptive use permitting and regulation.
Miami Corporation presented testimony from Robert C. Nixon, CPA, who was accepted as an expert in the fields of water and wastewater accounting, water and wastewater rate setting, and water and wastewater rate analysis; Scott Eckler, who was accepted as an expert in the fields of water and wastewater utility design and construction and water and wastewater cost estimates; Stanley K. Smith, Ph.D., who was accepted as an expert in the fields of Florida population estimates and projections, state and local demography in Florida; David W. Depew, Ph.D., AICP, who was accepted as an expert in the fields of planning, comprehensive planning and the development review process; William Michael Dennis, Ph.D., who was accepted as an expert in the fields of biology, ecology, wetlands mitigation, wetland permitting, and wetland ecology; William Bruce Lafrenz, P.G., who was accepted as an expert in geology, hydrogeology, groundwater modeling, APT design analysis and wellfield design; Richard H. Smith, who was accepted as an expert in surveying; and Charles Drake, P.G., who was accepted as an expert in geology, hydrogeology, water well construction, consumptive use permitting, groundwater resource evaluation and wellfield design. In addition, Miami Corporation presented the deposition
testimony of Gerardo Salsano, P.E.; Barbara Vergara, P.G.; James Dozier; and Michael Bagley.
Vergie Clark presented testimony from John Watson, who was not tendered as an expert in any specific field but who has expertise in hydrogeology; Stanley A. Williams, who was not tendered as an expert in any specific field but who is a District employee with expertise in groundwater flow modeling; Thomas M. Missimer, Ph.D., P.G., who was accepted as an expert in the fields of geology, hydrogeology, water quality, wellfield development, and reverse osmosis plants; Alge G. Merry, M.A.Sc., P.E., who was accepted as an expert in the fields of groundwater flow modeling, density-dependent modeling, solute transport modeling, hydrogeology, and water quality; Brian E. McGurk, P.G., who was not tendered as an expert in any specific field but who is a District employee with expertise in groundwater flow modeling; and Weixing Guo, Ph.D., who was accepted as an expert in the fields of groundwater modeling, including MODFLOW, MT3D, MT3DMS, SEAWAT, particle tracking, and water quality. In addition, Ms. Clark presented her own testimony and the testimony of Roy Farmer by deposition. Ms. Clark also was granted permission to depose James Dozier post-hearing due to his unavailability during the hearing for medical reasons and present his post-hearing testimony by deposition.
Before the hearing, thousands of exhibits were identified pre-marked by the parties. A relatively small percentage of the exhibits identified pre-hearing was used during the hearing, but those still numbered in the high hundreds. Ruling was deferred on objections to some exhibits, and the parties subsequently stipulated to the admission or exclusion of many of the deferred exhibits,2 leaving a limited number of objections pending decision. Rather than list all the admitted exhibits,3 only the objections that remain pending will be addressed here; the admitted exhibits are reflected in the Transcript and in the stipulations filed by the parties, along with the following rulings on objections.
At this time, Petitioners' objections to City Exhibits 18, 37, 243, 294, 300, 304, 307, 744.4, 744.5, and 744.6, 745, 745A,
and 745.1 through 745.112 are overruled, and those exhibits are admitted in evidence. In addition, the City had Petitioners' Exhibit 13,020 admitted in evidence without objection during the hearing, but Petitioners later objected after Petitioners withdrew pending Petitioners' Exhibits 12,968 through 12,979, which were based on Petitioners' Exhibit 13,020. At this time, Petitioners' objections are overruled, and Petitioners' Exhibit 13,020 is received in evidence as a City exhibit.
In light of the admission of City Exhibits 295, 300, 302, 304, and 307, Petitioners' Exhibits 263, 266, 267, 12,693,
12,695, and 13,025 also are received in evidence at this time, in accordance with the parties' stipulation.4 In addition, at this time, the pending objections to Petitioners' Exhibits 12915, 13031, 13033, 13038, 13052, 13053, 13054, 13055, 13056,
13057, 13068, 13073, 13075, 13076, and 13077 are overruled; and those exhibits are received in evidence.
The final hearing transcripts (Volumes 1-45) were filed with DOAH on April 12, 2007. The parties were given until May 14, 2007, to submit their proposed recommended orders and
until June 5, 2007, to file responses to the PROs. All PROs and responses have been carefully considered in the preparation of this Recommended Order.
The post-hearing deposition of James Dozier was taken on June 15, 2007, but Petitioners decided not to file the deposition transcript and moved without objection to close the evidentiary record on July 11, 2007.
Finally, two motions for sanctions are pending: the City's Motion for Attorneys' Fees, Costs and/or Other Sanctions against Miami Corporation for its prosecution of this case; and Miami Corporation's counter Motion for Attorneys' Fees, Costs and/or Other Sanctions Pursuant to 57.105 filed against the City for the City's sanction filing. By agreement of the parties, jurisdiction is being reserved to hear and rule on those motions if necessary.
FINDINGS OF FACT
Area II and III Wellfields
On February 10, 1998, the District issued CUP 10647 to the City of Titusville, authorizing the withdrawal of an annual average of 6.5 mgd from the City's Area II and Area III Wellfields, 5.4 from Area II and 1.1 from Area III. These wellfields are owned and operated by the City and are located within its municipal boundaries. They produce water from the SAS.
The Area II Wellfield is located near I-95 in the northeastern portion of the City and consists of shallow wells primarily constructed between 1955 and 2002. It consists of 53 production wells, of which 31 are considered to be of primary use. The City replaced 16 Area II production wells in 1995 and
4 production wells in 2000 and is currently considering the replacement of 4 additional wells.
The Area III Wellfield is located in the south-central portion of the City’s service area. It consists of 35 production wells, of which 18 are considered to be of primary use.
Petitioners contend that both the "safe yield" (the quantity of water the City can withdraw without degrading the water resource) and the "reliable yield" (the quantity of water the City can dependably withdraw) of the Area II and III
Wellfields are the permitted limits of 5.4 and 1.1 mgd, respectively. The City and the District contend that saline intrusion into the SAS has reduced the safe and reliable yields to significantly less than the permitted amounts at this time.
Historically, the Area II Wellfield was the most productive wellfield. Prior to 1988, the City relied entirely on the Area II Wellfield and pumped almost 5 mgd from it at times. Since then, several Area II wells have shown signs of water quality degradation that has resulted in a reduction in pumping to better stabilize water quality levels. For the past five years, the City has only pumped approximately 3 mgd on an annual average basis from the Area II Wellfield.
Chloride concentrations exceeding 250 mg/l have been recorded in 16 Area II production wells. Chloride concentrations exceeding 250 mg/l have been recorded in 22 Area III production wells. About 10 wells in the Area II and III Wellfields have been abandoned because of water quality degradation. At the Area II Wellfields there are 10 wells whose use is impaired because of water quality issues. At the Area III Wellfields there are 15 wells whose use is impaired because of water quality issues.
Area III has had serious chloride problems, with concentrations at or near 200 mg/l for much of the mid-90's. In the Area III Wellfield, the Anastasia wells have the best water
quality. However, these wells have also seen increasing concentrations of chlorides, with one well over 200 mg/l.
According to information introduced into evidence by the City, it appears that Area III began to have chloride problems primarily due to over-pumping.5 The City pumped far in excess of permit limits from Area III during the early 1990's, including almost twice the permit limit in 1990 and 1.5 times the limit in 1991. While chlorides were between 77 and 92 mg/l in 1990-92, they began to rise in 1993 and were between 192 and
202 mg/l for the rest of the decade. Area III production declined in 1997 to approximately 0.66 mgd and declined further to a low of approximately 0.5 mgd in 1999. In 2000, chlorides fell to approximately 138 mg/l and then rose to approximately
150 mg/l in 2002-04, while production gradually rose to close to the permit limit in 2002 and 2003, before dipping to 0.75 mgd in 2004. In 2005, production was back up to 1 mgd, and chlorides were approximately 87 mg/l. During the five years from 2001 through 2005, the City has pumped an annual average rate of approximately 1 mgd from Area III.
In contrast, Area II has not been over-pumped during the same time period. Area II production generally declined from a high of 4.146 mgd in 1992 to a low of 2.525 mgd in 2000, except for an increase of approximately 0.25 mgd between 1997 and 1998. During this time, chlorides generally declined from a
high of 124 mg/l in 1993 to approximately 68 mg/l in 2000, with the exception of a rise to approximately 111 mg/l in 1999. Area II production then generally increased through 2003 to approximately 3.000 mgd, where it remained in 2004 before declining to approximately 2.770 mgd in 2005. Area II chlorides were approximately 113 mg/l in 2001, 109 in 2002, 86 in 2003, 76
in 2004, and 83 in 2005. During the five years from 2001 through 2005, the City has pumped only an annual average rate of
2.86 mgd.
In 1995, the City entered into a contract with the City of Cocoa requiring the City to pay for at least 1 mgd each year, whether the City actually takes the water or not (the "take-or-pay" clause). Using the Cocoa water allowed the City to reduce production from Area III without a corresponding increase in production from Area II. Water conservation measures implemented since 1998, including conservation rates, have since reduced per capita water use. In 2002, the contractual take-or-pay requirement was reduced to 0.5 mgd. After 2002, purchases of Cocoa water have amounted to 0.576, 0.712, and 0.372 mgd on an annual average basis. As a result, since at least 1990 Area II has not been required to produce at its permitted limit.
It is not clear exactly what the City believes to be safe and reliable yields at this time from Areas II and III. In
its PRO, the City took the position that the total reliable yield is 3.5 to 4 mgd, of which 2.25 to 2.5 mgd is attributable to the Area II Wellfield and 0.75 mgd is attributable to the Area III Wellfield. However, its consultant, Mr. Patrick Barnes, testified that the City's current reliable yields are 3 mgd from Area II and 1 or 1.1 mgd from Area III. He testified that the safe yield from Area II would be approximately 3.5 mgd.
The District has not formulated an opinion as to the exact of amount of water that can be produced from the Area II and III Wellfields on a sustainable basis. However, the District believes that recent production levels, which have resulted in a stabilization of chloride concentrations, may be the most production that can be sustained from these facilities without adverse water resource impacts. That would mean approximately 4.5 mgd on an annual average basis from Areas II and III combined.
It might be possible for the City to expand the reliable yield of the Area II Wellfield by constructing additional wells or through some other measures. But Brevard County’s North Brevard Wellfield, located immediately north of the City’s Area II Wellfield, utilizes the same SAS used by the Area II Wellfield, and Brevard County recently received an increased permitted allocation from the District for this
facility. This would limit the City’s ability to expand the current production of water from the Area II Wellfield.
Other limitations on expansion of production from Areas II and III include: the relatively high risk of contamination of the SAS from pollution sources such as underground petroleum storage tanks; the limited space available in an increasingly urbanized area for the construction of new wells; the chronic bio-fouling and encrustation of wells due to the high iron content of the SAS; and the low specific capacity of each production well.
For these reasons, it is not clear at this point in time whether it is possible to sustain more water production from Areas II and III than the City has pumped in recent years. B. Area IV Application and TSR
On March 6, 2001, the City of Titusville submitted its application to modify CUP 10647. Included in this application was a proposal to add a new Area IV Wellfield in northwest Brevard County to pump up to 2.75 mgd from the UFAS. The District issued a series of seven Requests for Additional Information in between April 5, 2001, and March 23, 2004.
On December 15, 2004, the District issued its initial TSR for the CUP modification application. That TSR proposed to authorize the use of 2.75 mgd from the UFAS and 0.18 mgd of groundwater from the SAS from the proposed Area IV Wellfield and
3.3 mgd of groundwater from the SAS from the existing Area II and Area III Wellfields to serve a projected population of 56,565 in 2008. There was no request to extend or renew the permit, which expires February 10, 2008. Miami Corporation filed a petition challenging this TSR.
On May 13, 2005, the City submitted a revised application for a separate Individual CUP for the Area IV Wellfield, rather than modifying its existing CUP 10647 to include the new wellfield, with a permit expiration of
December 31, 2010. On May 25, 2005, the staff issued a revised TSR. That TSR proposed a new permit to authorize up to 2.75 mgd of groundwater from the UFAS and 0.178 mgd of groundwater from the SAS from the proposed Area IV Wellfield to serve a projected population of 59,660 in 2010. The revised TSR noted that the proposed permit expiration date for the Area II and Area III Wellfields would remain February 10, 2008. Vergie Clark filed a petition challenging the revised TSR, as did Miami Corporation.
After various notices on the TSR and the revised TSR to interested persons in Brevard County, in August 2005 the District issued additional notice to interested persons in Orange, Seminole and Volusia Counties. As a result, all required public notices have been issued.
On March 14, 2006, the City again revised its application, and on May 1, 2006, the District issued its second
revised, and final, TSR--which is the TSR now at issue. The TSR at issue recommended that a CUP be issued to Titusville for 2.75 mgd of groundwater from the UFAS and .18 mgd of groundwater from the SAS for wetland hydration and aquifer recharge from the Area IV Wellfield on an annual average basis to serve a projected population of 63,036 in 2010. This TSR provided that the proposed permit would expire December 31, 2010.
TSR at Issue
Water Use Allocation
The CUP recommended by the TSR would only grant the City a water allocation from the Area IV Wellfield for 2009 and 2010. The recommended CUP would allow the City to withdraw water from the Area IV Wellfield at an annual average rate of
2.75 mgd during those years for public supply. (Other Condition 4)
The CUP recommended by the TSR would limit the City’s potable water allocation from the Area IV Wellfield to a maximum rate of 3.85 mgd during the four consecutive months of the dry season, which can occur during any time of the year. If 3.85 mgd is withdrawn during this four-month period, the withdrawal rate for the remaining 8 months cannot exceed 2.21 mgd. (Other Condition 8)
The CUP recommended by the TSR would limit the City’s potable water allocation from the Area IV Wellfield to a maximum rate of 4.41 mgd during any single month. (Other Condition 7)
The CUP recommended by the TSR would limit the City’s potable water allocation from the Area IV Wellfield to a maximum rate of 6.5 mgd during any single day during a severe drought, when the existing sources (meaning Areas II and III) cannot be used without inducing water quality degradation or exceeding permitted quantities. (Other Condition 9)
The CUP recommended by the TSR would allow the City to withdraw water from the SAS extraction wells at an annual average rate of up to 0.178 mgd in 2009 and 2010 for wetland hydration and surficial aquifer recharge. (Other Condition 6)
The CUP recommended by the TSR would limit the withdrawal of water from the Area II, III and IV Wellfields to a combined annual average rate of 5.79 mgd in 2009 and a combined annual average rate of 6.01 mgd in 2010. The CUP recommended by the TSR would limit the withdrawal of water from the Area II, III and IV Wellfields to a combined maximum daily rate of 8.88 mgd in 2009 and 9.0 mgd in 2010. (Other Conditions 5, 9)
The CUP recommended by the TSR would reduce Titusville's combined annual average and maximum daily allocations from the Area II, III and IV Wellfields in 2009 and
2010 by an amount equivalent to the quantity of water purchased from the City of Cocoa during each year. (Other Conditions 5, 9)
Other Condition 10 in the recommended by the TSR notifies the City that nonuse of the water supply allocated by the CUP for two years or more is grounds for revocation by the District's Governing Board, permanently and in whole, unless the City can prove that its nonuse was due to extreme hardship caused by factors beyond the City's control.
Permit Duration
The CUP recommended by the TSR would not allow the City to withdraw water from the Area IV Wellfield earlier than January 1, 2009; as indicated, it would expire on December 31, 2010. (Other Conditions 2, 4).
Saline Water Intrusion
The CUP recommended by the TSR contains a permit condition requiring the City to implement the proposed saline water monitoring plan by sampling and analyzing Saline Water Monitor Wells SWMW 1-6 and UFAS production wells 401, 403, 405, 407, 409, 411, 413 and 415 quarterly for water levels, chloride and total dissolved solids. (Other Condition 11)
The CUP recommended by the TSR contains a permit condition authorizing the District to modify the allocation granted to the City in whole or in part or to otherwise curtail
or abate the impact in the event of saline water intrusion. (Other Condition 14)
The CUP recommended by the TSR contains a permit condition requiring the City to cease withdrawal from any UFAS production well, if any quarterly water sample from that well shows a chloride concentration exceeding 250 mg/l. That same condition would limit the operation of any UFAS production well with a quarterly sample exceeding 250 mg/l to six hours per day with a minimum 24 hours recovery between pumping cycles if subsequent samples contain chloride concentrations between 200 mg/l and 249 mg/l. (Other Condition 25)
Environmental Impacts and Avoidance and Minimization
The CUP recommended by the TSR contains a permit condition requiring the City to implement the proposed environmental monitoring plan for hydrologic and photo- monitoring at 16 wetland sites within one year of permit issuance and to establish a baseline prior to the initiation of groundwater withdrawals. That same condition requires the City to collect water level data at each wetland site either on a daily or weekly basis and report to the District every six months in District-approved, computer-accessible format. (Other Condition 12)
The CUP recommended by the TSR contains a permit condition authorizing the District to revoke the permit in whole
or in part or to curtail or abate impacts should unanticipated adverse impacts occur to wetlands, lakes and spring flow. (Other Condition 23)
The CUP recommended by the TSR contains a permit condition authorizing the District to require the City to implement the proposed avoidance and minimization plan should unanticipated impacts occur to Wetland A4-2 (a shallow marsh near the middle of the wellfield) within 90 days of notice by the District. That same permit condition authorizes the District to require the City to submit a wetland rehydration plan for any other adversely affected wetland within 30 days of notice by the District and to implement the plan without 90 days of approval by the District. The District would require the City to implement avoidance measures before the wetlands are actually allowed to suffer adverse impacts. (Other Condition 24)
Impacts to Other Existing Legal Users of Water
The CUP recommended by the TSR contains a permit condition authorizing the District to require mitigation of any unanticipated interference to existing legal users of water due to withdrawals from the Area IV Wellfield. Mitigation may include installation of a new pump or motor, installation of additional drop pipe, new electrical wiring, connection with an existing water supply system, or other appropriate measures. (Other Condition 15)
Water Conservation Measures and Reuse
The City is implementing extensive water conservation measures. The City’s water conservation plan includes public education measures (e.g., televised public service announcements, helping to create water conservation videos and distributing them to the public, commissioning an award winning native plant mural, providing exhibits and speakers for public events), toilet and showerhead retrofits, and a water conservation based rate structure. A water conservation rate structure provides the potable water customer with an economic incentive to use less water. The most common conservation rate structure is a tiered-rate whereby the cost per gallon of water increases as the customer uses more water. While the District reviews the rate structure to evaluate whether it will achieve conservation, it does not mandate the cost per gallon of water.
An audit of the City’s potable water distribution system was conducted and recent water use records were evaluated to determine if all necessary water conservation measures were in place. The audit indicated that the potable water system has small unaccounted-for water losses, approximately 6.5 percent, and relatively low residential per capita water use.
The City has implemented a water conservation plan that implements rule requirements; as a result, the City has provided reasonable assurance that it is implementing all
available water conservation measures that are economically, environmentally, or technologically feasible.
The City cannot use reclaimed water to meet its potable water demands associated with direct human consumption and food preparation. However, reclaimed water can be used to replace that part of the City’s allocation that is associated with irrigation-type uses. The City has operated a reclaimed water reuse system since 1996. It is projected that 67 percent of the available wastewater flows will be utilized by 2010 for irrigation, with the remainder going to a wetland system during wet weather periods when irrigation demands are low. The City is using reclaimed water to the extent it is economically, environmentally and technologically feasible.
In the case of public supply, the District looks to the amount of water requested for each person in a projected population in determining whether the water will be used efficiently. The metric that the District normally considers when conducting this part of the evaluation is the per capita usage.
Population Projections and Per Capita Water Use
As indicated, the proposed CUP would expire on December 31, 2010. Although the City and District would anticipate an application for renewal to be filed, demand for
water projected beyond December 31, 2010, is not relevant to the need for the proposed CUP.
In the case of public supply, projected demand for water usually is calculated by multiplying the projected population times per capita water use. Gross per capita (“GPC”) use in gallons per day (gpd) is the type of metric normally used to project demand for public supply of water. It is based on residential use and all other water uses supplied by the utility, including commercial, industrial, hotel/motel, and other type uses. That includes supply necessary to meet peak demands and emergencies.
DEP requires that every public water supply system have an adequate water supply to meet peak demands for fire protection and health and safety reasons. If peak demands are not met, a major fire or other similar catastrophe could depressurize a public water system and possibly cause water quality problems. Projections of need for water in the future must take into account peak demands and emergency needs. Water used for those purposes is included in the historical average daily flows (ADF) from which historical GPC is derived.
Unless there is good information to the contrary, in projecting GPC one assumes that those uses will increase roughly in proportion to the residential use.
City's Projection
Contending that the University of Florida Bureau of Economic and Business Research (BEBR) does not estimate or project population for municipalities, and that BEBR projections are based on historical trends that would under-project population in the City, the City used a different source and method to project population in the City's water service area on December 31, 2010.
For its method, the City had Courtney Harris, its Planning Director, project the number of dwelling units that would be developed and occupied in 2011, calculating the additional people associated with each unit (based on the 2000 Census, which identified 2.32 as the average number of persons per dwelling unit in the City), and adding the resulting number to the City’s existing service area population as of 2005.
The City's method yielded various results depending on when proposed developments in the City were reviewed. Ultimately, the City projected a population of 60,990 at the end of 2010.
The City's method depends on the ability of its Planning Director to accurately predict the timing of new residential construction and sales, which is not easy to do (as indicated by the different results obtained by the City over time), since there are many factors affecting residential
development and the real estate market. The ultimate predictions of the City's Planning Director assume that residential development will continue at an extraordinarily high pace although there already was evidence of downturn. The City's method also assumed that all new units will be sold (which, again, is contingent on market conditions) and fully occupied (although a 90 percent occupancy rate would be a more realistic.) The method also does not account for decreases in population in a number of areas in the Titusville service area (while overall population increased, mostly as a result of growth that has been occurring in a single census tract.)
The City's witnesses then calculated a per capita water use rate by averaging the actual rates for the 11 years from 1995 through 2005, which resulted in projected per capita water use rate of 100.35, and a projected demand of 6.12 mgd at the end of 2010.
The justification for averaging over 11 years, instead of the last five years, was that the last five years have been unusually wet, which would depress demand to some extent. However, using 11 years also increased the average water use by taking into account the higher use rates common before conservations measures, including conservation rates, went into effect (in particular, 123.75 gpd for 1995, 122.36 gpd for 1996, and 109.94 gpd for 1998.) Since 1998, and implementation of the
conservation rates and other measures, water use rates have been significantly lower. While the average over the last 11 years was 100.35 gpd, the average over the last five years (from 2001- 2005) was just 92.15 gpd. Averaged since 1998, the City's water use rate has been 93.34 gpd.
While wetter-than-normal conditions would be expected to depress water use to some extent due primarily to decreased lawn irrigation, many of the City's water customers have private irrigation wells for this purpose. Besides, Mr. Peterson, the City's Water Resources Manager, testified that not many of the City's water customers use potable water for lawn irrigation due to the new conservation rates.
Petitioners' Projection
Miami Corporation's population expert, Dr. Stanley Smith, is the Director of BEBR. Dr. Smith projected the population for the City's service area by first developing an estimate of the population of the water service area in 1990 and 2000 using block and block group data, and then using those estimates to create estimates from 2001-2005. Dr. Smith then projected population in the City's water service area using a methodology similar to what BEBR uses for county projections. Dr. Smith's methodology used three extrapolation techniques. He did not use a fourth technique, often used at BEBR, called shift-share, because he believed that, given Titusville's
pattern of growth, using shift-share might produce projections that were too low. In developing his final projections, Dr.
Smith also excluded the data from 1990 to 2000 because growth during that period was so slow that he felt that its inclusion might result in projections that were too low. Dr. Smith's approach varied slightly from the typical BEBR methodology in order to account for the fact that the City's growth has been faster since 2000.
Dr. Smith applied an adjustment factor based on an assumption also used by the City's expert that 97.3 percent of the projected population within the City's water service area in 2010 would be served by the City. Using his method, Dr. Smith projected the population of the Titusville water service area to be 53,209 on December 31, 2010.
Based on recent population estimates, Dr. Smith believes that, if anything, his projections are too high. It was Dr. Smith's opinion from the data that the annual increases for Titusville and the Titusville water service area peaked in 2003 and that they had been declining since that time. That was especially true of 2006, when the increase was the smallest that it had been for many years.
Petitioners' expert, Mr. Drake, calculated a per capita water use rate by averaging the actual rates for the most recent five years (2002-2006), which resulted in a per capita
water use rate of 89.08 gpd, and a projected demand of 4.74 mgd at the end of 2010. He also calculated a per capita water use rate for 2006, which came to 88.65 gpd, which would give a slightly lower projected demand of 4.72 mgd.
Ultimate Finding of Projected Water Demand
Based on all the evidence, it is found that Dr.
Smith's projection of the population that will use City water on December 31, 2010, is more reasonable than the City's projections.
The City and District contend that, regardless of the calculated per capita water use rate, it is appropriate to base the City's allocation on a rate of 100.35 gpd because 90 to 100 gpd is very conservative per capita water use rate for a public water supply utility. However, the allocation should be based on the best estimate of actual demand, not a general rate commonly assumed for water utilities, even if conservative.
The City and District also contend that it is appropriate to base the City's allocation on a higher use rate because the climatic conditions experienced in the City over what they considered to be the most recent five years (2001- 2005) have been average-to-wet. More rainfall generally means less water use, and vice-versa, but the greater weight of the evidence proved that the City's demand for water has not varied much due to climatic conditions in recent years (after
implementation of conservation measures, including conservation rates.) (City Exhibit 19, which purported to demonstrate the contrary, was proven to be inaccurate in that it showed significantly more water use during certain drier years than actually occurred.) However, in 2000--which was after the implementation of conservation rates and also the City's driest year on record (in approximately 75 years)--the water use rate was approximately 97.5 gallons per person per day. An average of the last eight years (1999-2006), which would include all years clearly responsive to the conservation rates as well as the driest year on record, would result in a per capita water use rate of approximately 92.8 gpd, and a projected demand of approximately 4.94 mgd by December 31, 2010.
The District argues in its PRO that, because a CUP water allocation is a legal maximum, it would be inappropriate to base the City's water allocation on demand during a wet or even an average year (which, it says, would set the permittee up to violate its permit requirements 50 percent of the time). If, instead, the City's water allocation were based on demand during 2000, the driest year on record, projected demand would be approximately 5.2 mgd on December 31, 2010.
Those calculated water allocations--i.e., either the
4.94 mgd or the 5.2 mgd--would then be compared to the probable safe and reliable yield of 4.5 mgd from Areas II and III to
determine the deficit on an annual average basis. Allowing a reasonable margin of error for the uncertainties of the predictions involved, a reasonable maximum annual average allocation for the proposed Area IV Wellfield would be 0.75 mgd.
Mr. Jenkins suggested in rebuttal that, if the need for water is less than that set out in the proposed CUP in the TSR at issue, a CUP should nonetheless be issued but with lower water allocations. While the evidence supports a reduction of the annual average limit from 2.75 mgd to 0.75 mgd, there was insufficient evidence to show how the other water allocation limits in the proposed CUP should be changed.
For the past 12 years, the City of Titusville has been able to purchase water under a contract with the City of Cocoa to meet all of its demands, including any peak or emergency water demands. Under the take-or-pay provision in the contract currently in effect, the City must pay for 0.5 mgd and presumably would take and use at least that amount so long as the contract remains in effect. This would reduce the City's projected water supply deficit through the end of 2010, and the City could rely on the Cocoa contract to cover any additional demand through the end of 2010 without Area IV. However, under the contract, the City can give notice on or before April 1 of the year in which it intends to terminate the contract effective October 1 of the same year. If a CUP for Area IV is issued, the
City could terminate the current contract effective as early as October 1, 2008. It also is possible that the contract could be negotiated so that its termination would coincide with the time when the Area IV Wellfield becomes operational if not near October 1 of the year.
As indicated, even if the contract remains in place, to the extent that the City receives water from the City of Cocoa for potable use during either 2009 or 2010, the allocations under the proposed TSR will be reduced an amount equivalent to the quantity provided to the City by Cocoa in that year.
Finally, as indicated, the existing CUP for Areas II and III is set to expire in February 2008. Although it is anticipated that the City will apply to renew the existing CUP for Areas II and III, and that the District will approve a renewal at some level, it is not clear how much production will be approved for Areas II and III for the years 2009 and 2010. Meanwhile, the CUP proposed for Area IV provides that the combined annual groundwater withdrawals for public supply for the Areas II, III, and IV may not exceed 5.79 mgd for 2009 and
6.01 mgd in 2010. Based on the findings in this case, those figures should be reduced to no more than 5.2 mgd, and it must be anticipated that a similar condition would be placed on any renewal of the existing CUP for Areas II and III as well.
Site Investigation
At the time the City decided to apply for a CUP for Area IV, it was known that the UFAS in much of Brevard County was not suitable as a source of potable water supply, but there was believed to be a tongue of the UFAS in the northwest corner of the County and extending towards the southeast, and narrowing in that direction, that might be suitable for that purpose, particularly in the upper part of the aquifer.
Because there was insufficient information to adequately evaluate the whether proposed Area IV, which was located along the Florida East Coast Railway (FEC) Right-of-Way (ROW), could be used for that purpose, the City’s consultant, Barnes, Ferland and Associates (BFA), designed a drilling and testing program to collect site-specific information in order to characterize the groundwater quality, identify the thickness of the freshwater zone in the UFAS, and determine hydraulic parameters for the groundwater system. In addition, DRMP conducted an environmental assessment of the Area IV Wellfield and surrounding property.
The drilling and testing program designed by BFA for the Area IV Wellfield was similar to other hydrogeologic investigations conducted in the region with respect to wellfields operated by the City of Edgewater, the City of New
Smyrna Beach, the City of Ormond Beach, the Orlando Utilities Commission and Orange County.
The drilling and testing program for the Area IV Wellfield included Time-Domain Electromagnetic Mapping ("TDEM") performed by SDII Global, a consultant retained by the District. TDEM is not typically used for the hydrogeologic investigation of a new wellfield. The TDEM technique involves estimating the depth to the 250 mg/l and 5,000 mg/l chloride concentration in the groundwater system using electrical resistivity probes. The technique was applied at four locations along the FEC Right-of-
Way.
In addition to the TDEM study, BFA installed three
test production wells along the FEC ROW, collected lithologic samples with depth, performed borehole aquifer performance and step drawdown tests at two test sites and recorded water quality with depth through grab and packer samples.
The northernmost test production well was Test Site 1, which corresponds to Area IV production well 401. The middle test production well was Test Site 3, which corresponds to either Area IV Well 412 or Area IV Well 413. The southernmost test production well was Test Site 2, which is located approximately 1.5 miles south of the southernmost Area IV production well. Test Sites 1 and 2 were constructed first and
Test Site 3 was drilled later because of unfavorable water quality conditions encountered at Test Site 2.
Test Site 1 is located on the FEC ROW approximately
430 feet southeast of the Volusia-Brevard County line. At Test Site 1, BFA installed a test-production well (UF-1D), a UFAS monitor well (UF-1S), and a SAS monitor well (SA-1) in 2001. In 2005 BFA installed two additional SAS monitor wells (MW-1 and RW-1) near Test Site 1. The test production well was drilled to a depth of 500 feet below land surface and then back-plugged to a depth of 250 feet below land surface and cased to a depth of 105-110 feet below land surface.
Test Site 2 is located on the FEC ROW approximately
2.8 miles southeast of the Volusia-Brevard County line. At Test Site 2, BFA installed a single UFAS Monitor Well (UF-2S). The monitor well was drilled to a total depth of 210-220 feet below land surface.
Test Site 3 is located on the FEC ROW approximately
1.4 miles southeast of the Brevard-Volusia County line. At Test Site 3, BFA installed a test production well (UF-3D), a UFAS monitor well (UF-3S), and a SAS monitor well (SA-3). The test production well was drilled to a depth of 500 feet below land surface and then back-plugged to a depth of 210 below land surface..
Since Test Site 3 is either Area IV Well 412 or 413, and assuming production well 415 will be located 1,200 feet southeast of Test Site 3, this means that Test Site 2 is located at least one mile southeast of the southernmost Area IV production well.
Test Sites 4 and 6 are located approximately three miles southeast of Brevard-Volusia County line. SAS test production wells were constructed at both sites to a total depth of about 20-30 feet below land surface.
The site-specific hydrogeologic data collected by BFA as part of the drilling and testing program verified the groundwater basin and flow direction shown in Figure 15 of City Exhibit 523.
DRMP’s environmental assessment of the Area IV Wellfield spanned the period from 2002 through 2006. In Spring 2002, DRMP evaluated areas within the predicted 0.2 foot drawdown contour by assessing wetland vegetation, photographing wetlands, noting wetland hydrologic conditions, investigating soil condition and wildlife utilization and evaluating surrounding land uses and natural communities. In Fall 2002, DRMP evaluated potential monitoring sites both on and off Miami Corporation's property by assessing wetland vegetation composition and hydrologic conditions, investigating soil conditions and wildlife utilization, evaluating surrounding land
use and natural communities and locating suitable control sites. In Fall 2003, DRMP evaluated potential wetland monitoring sites near the southernmost Area IV production wells by assessing wetland vegetation composition and hydrologic conditions, investigating soil conditions and evaluating surrounding land uses and natural communities. In Spring 2005, DRMP assessed wetlands surrounding the Area IV Wellfield by evaluating wetland vegetation composition and hydrologic conditions, photographing wetlands, investigating soil conditions, evaluating surrounding land use and natural communities and collecting GPS points. In Fall 2005, DRMP investigated the Clark property by evaluating wetland vegetation and hydrologic conditions, photographing wetlands, investigating soil conditions and wildlife utilization and evaluating surrounding land uses and natural communities.
In Spring 2006, DRMP developed a revised environmental monitoring plan and avoidance and minimization plan based on the new SDI MODFLOW Model by locating the final wetlands monitoring sites, developing the hydrologic and vegetative monitoring protocol, establishing the scope of the baseline study, reviewing the preliminary pipeline routing, construction and discharge inlet structures and preparing and submitting plan documents to the District.
DRMP evaluated the occurrence of listed animal and plant species in the vicinity of the Area IV Wellfield as part
of its environmental assessment. DRMP reviewed the Natural Areas Inventory for the Area IV Wellfield site, which identifies occurrences of listed species within a designated area.
Additionally, DRMP made note of animal and plant species during the site visits in 2002, 2003, 2005, and 2006.
DRMP evaluated the Farmton Mitigation Bank as part of its environmental assessment. DRMP reviewed the permit files for the Farmton Mitigation Banks, including the annual environmental monitoring reports prepared by Miami’s consultants.
In 2005, DRMP conducted a field assessment of the Clark property including a thorough investigation of the fish pond, which Petitioners claim was adversely impacted during one or more of the APTs conducted by the City at the Area IV Wellfield.
It was not necessary for the City’s environmental consultants to visit each and every wetland in the vicinity of the proposed Area IV Wellfield. Typically, only representative wetland sites are visited during the environmental assessment process.
The scope of the City's hydrologic and environmental investigation of the Area IV Wellfield was adequate and consistent with industry standards and the District protocol for testing aquifers and characterizing aquifer performance and groundwater quality at the site. Nonetheless, Petitioners
contend that there were serious deficiencies in the investigation's implementation and that additional investigation should have been performed.
Hydrostratigraphy
The SAS at the Area IV Wellfield is 40-to-50 feet deep and is composed primarily of unconsolidated sand, shell and silt.
The intermediate confining unit (ICU) at the Area IV Wellfield consists of the Hawthorne Group and ranges in thickness from 40 to 60 feet. The top of the ICU is located 40-
50 feet below land surface and the bottom of the ICU is located
100 feet below land surface. This unit is composed of varying amounts of sand, shell, silt, indurated sandstone, clay, and some limestone. It tends to restrict the movement of water from the SAS to the UFAS.
The UFAS at the Area IV Wellfield is a fairly homogenous limestone unit, which starts approximately 100 feet below land surface and extends to about 450 feet below land surface or 425 feet below mean sea level. It consists of the Ocala Group and grades into the upper portion of the Avon Park Formation.
The middle confining unit (MCU) at the Area IV Wellfield starts at approximately 450 feet below land surface or
425 feet below mean sea level and ends approximately 1,000 feet
below land surface. It comprises a denser, fine-grained dolomitic limestone within the Avon Park Formation. The MCU restricts the movement of water between the UFAS and LFAS.
The location of the MCU at the Area IV Wellfield was determined by examining cuttings and video logs collected during drilling performed at Test Sites 1 and 3 and by measuring various properties of the aquifer with down-hole geophysical techniques.
The MCU can be distinguished from the UFAS by the presence of both dolomite and limestone. The lithologic log for Test Site 1 indicates the presence of gray/tan limestone between
450 and 460 feet below land surface and light/gray limestone and dolomitic limestone between 460 and 470 feet below land surface. The lithologic log for Test Site 3 indicates the presence of tan dolomitic limestone between 450 and 460 feet below land surface and tan limestone and dolomitic limestone between 460 and 470 feet below land surface. After examining the video log for Test Site 1, Petitioners’ expert, Dr. Thomas Missimer, noted a “lithologic change” at 477 feet below land surface.
Other characteristics of the MCU are a lower resistivity and a sharp decrease in flow. The data collected at Test Site 1 shows a reduction in resistivity at approximately
470 feet below land surface. The flow meter log for Test Site 1
exhibits a decrease in flow at approximately 450 feet below land surface.
Petitioners’ experts, Thomas Missimer, Alge Merry, and Bruce Lafrenz contend that the top of the MCU at the Area IV Wellfield is located deeper than 450 feet below land surface or
425 feet below mean sea level. This contention is based on regional reports, the geophysical logs reported by BFA, and one of the packer tests conducted at the bottom of the test wells that showed a pumping rate of 85 gpm.
The greater weight of evidence indicates the top of the MCU at the Area IV Wellfield starts at the elevation identified by BFA. The regional reports are not based on data collected from the immediate vicinity of the Area IV Wellfield. Additionally, the BFA's professional geologists who determined the top of the MCU included Joel Kimrey, who was the former head of the local USGS office, and had more experience with the hydrogeology of the MCU in Brevard and Volusia than any of the Petitioners’ geologic experts. Also, the BFA geologists had access to the drill cuttings, which were unavailable to the Petitioners’ experts when they made their determination. Finally, the pumping rate recorded during the packer test could be explained by an area of higher permeability within the MCU. More likely, the packer may have been partially open to the bottom of the UFAS.
The Lower Floridan Aquifer System (LFAS) starts at about 1,000 feet below land surface and ends approximately 2,300 feet below land surface.
Head Difference Data
Head refers to the pressure within an aquifer. In an unconfined aquifer, it is the water table. In a confined or semi-confined aquifer, it is the level to which water would rise in a well penetrating into the aquifer. Head difference refers to the numerical difference between two water levels either in different aquifer at the same location or different locations in the same aquifer.
In the context of the Area IV Wellfield, static head difference is the difference between the elevation of the water table in the SAS and the elevation of the potentiometric surface of the UFAS under non-pumping conditions at the same location.
The static head difference reflects the degree of confinement in the ICU. If the static head difference between the SAS and UFAS is a large number, this indicates a high degree of confinement between the two systems.
BFA took static head measurements at SAS and UFAS monitor wells located at Test Sites 1, 2 and 3 in January 2004, April 2004, and July 2006 and calculated the head difference based on those measurements. District expert, Richard Burklew, was present when the measurements were taken in April 2004 and
July 2006 and verified the readings made by the City’s consultants. During all three sampling events a downward head gradient was noted at each site, which means the water table had a higher elevation than the potentiometric surface of the UFAS. In January 2004, the measured head difference at Test Sites 1, 2 and 3 were 6.2 feet, 5.5 feet and 5.9 feet, respectively. In April 2004, the measured head difference at Test Sites 1 and 3 were 8.1 feet and 8.1 feet, respectively. Finally, in July 2006, the measured head difference at Test Sites 1, 2 and 3 were
8.6 feet, 6.6 feet and 9.3 feet, respectively. The average of those observed head differences was 7.46 feet.
At the time the head difference measurements were taken in July 2006, the region had experienced a rainfall deficit of 17 inches over the prior 12 months. Petitioners contend that the rainfall deficit may have skewed that head difference observation. However, according to the District’s expert, Richard Burklew, this would not necessarily have affected the head difference measurements because the hydrologic system would seek equilibrium, and the head difference would be the same.
BFA collected static head difference measurements from Test Sites 1, 2 and 3 during both wet and dry seasons. The measurements do not show significant differences between seasons. Head difference data collected from hundreds of other
Florida locations also do not show significant differences between seasons. This suggests that static head difference remains fairly constant at the Area IV Wellfield year round.
Water level measurements taken by the City’s consultants from the wells on Clark’s property and reported in City Exhibit 52 do not determine static head difference between the SAS and UFAS because the exact construction of the wells was unknown, the completion depth of certain wells was unknown, the operational history of the wells was unknown, and the putative SAS well was located several hundred feet away from the UFAS well. For example, the depth of one of the wells is reported as
57 feet, which could easily be located in the ICU. If that is the case, then the head difference measured by comparing to the water level in this well would only be the head differential between the ICU and the UFAS. Finally, the Clark property is located in a more elevated region than Test Sites 1, 2, and 3, which means the water table will be lower and the head difference will be less than at the Area IV Wellfield.
Water level measurements reported in the driller’s completion log for Wells 4175, 4176, 4177, and 5230 on Miami Corporation’s property do not determine static head difference between the SAS and UFAS because critical information concerning the construction of these wells is unknown. Additionally, the
wells are much shallower than test production wells at Test Sites 1, 2 and 3.
The water level measurements reported in the driller’s completion log for Wells 4175, 4176, 4177, and 5230 are not necessarily inconsistent with head difference measurements collected by BFA at Test Sites 1, 2 and 3. The head differences at these four well sites could be 6, 4, 7, and
6 feet, respectively, depending how the water measurements were made. Also, the measurements made by a driller could not be expected to be as accurate as measurements made by trained hydrologists. Further, if the soils in the vicinity of Well 4177 indicated a depth to water table of 5 feet below land surface, that would not necessarily be inconsistent with the head difference measurements collected by BFA at Test Sites 1, 2 and 3.
Depth to Water Table
The depth to water table is defined as the difference between the land surface elevation and the head value in the
SAS.
The water table in the Area IV Wellfield area is
consistently close to land surface and often above land surface. The construction of numerous above-grade forest roads and roadside ditches on the property surrounding the Area IV
Wellfield has had the effect of impounding surface water and raising the water table near land surface.
The Area IV Wellfield and vicinity have a variety of soil types. The predominant wetland soil type is Samsula Muck, which is classified as a very poorly drained soil with a water table either at or above land surface. The predominant upland soil type is Myakka Fine Sand, which is characterized by a water table within a foot of land surface during four months of the year and within 40 inches of land surface during remainder of the year. The average depth to water table at the Area IV Wellfield is approximately 1 foot based on soil types.
SAS levels at the three Farmton Mitigation Banks were measured at piezometers installed by Miami Corporation’s consultants from 2001 through 2005. This data confirms the water table at the Area IV Wellfield is consistently close to land surface and frequently above land surface. It indicates the depth to water table is typically less than 3 feet and in many cases within a foot or two. Also, it does not matter whether any of the piezometers were located near wetlands because they show seasonal variation in water levels, where the water table changes from slightly above land surface to below land surface over the course of a year.
A water table depth of 6-14 feet below land surface is not realistic at the Area IV Wellfield based on soil
conditions and vegetation communities. Such a depth to water would be indicative of a landscape composed primarily of xeric scrub communities with few, if any wetlands. These types of communities do not exist near the Area IV Wellfield.
Aquifer Performance Tests
The flow of water through an aquifer is determined by three primary hydraulic coefficients or parameters: transmissivity; storage; and leakance.
An aquifer performance test (APT) is a pumping test where water is removed from the well at a set rate for a set period of time and drawdown is measured in the well and in neighboring monitor wells to calculate the hydraulic properties of the hydrologic formation. The main hydraulic properties determined through an APT are transmissivity, leakance, and storativity. These properties are used to characterize the water production capabilities of the hydrologic formations. These properties are also used in groundwater modeling to project impacts for longer periods of time and larger distances.
Aquifer parameters can be determined from an aquifer performance test using analytical "curve-matching" techniques or a groundwater flow model such as MODFLOW. Curve-matching techniques involve the creation of a curve through measurement of drawdown and the matching of that curve to standard curves derived using analytical equations.
Hydraulic conductivity or “K” is the term used to describe the ability of a hydrogeologic unit to conduct fluid flow. It is usually expressed in terms of horizontal hydraulic conductivity or “Kx” and “Ky” and vertical hydraulic conductivity or “Kz.”
Transmissivity is the term used to describe the rate of movement of water for a given thickness of a hydrogeologic unit. It is the hydraulic conductivity of an aquifer times its thickness.
Storativity is the term used to describe the amount of water that is released from any aquifer for a given unit change in head, or the compressability of the aquifer system. This value can normally be determined during a 4-5 day aquifer performance test.
Specific yield is the term used to describe the long- term capacity of an aquifer to store water. This value cannot normally be determined during a 4-5 day aquifer performance test.
Leakance is the term used to describe the vertical movement of water from above or below a given unit in response to changes in head or pumpage.
APTs are standard practice for evaluating the suitability of a new area for development as a wellfield. Three APTs were conducted at Test Sites 1 and 3. No aquifer
performance tests were conducted at Test Site 2. Petitioners question whether the APTs for the Area IV Wellfield were conducted by BFA in accordance with the applicable standard of care in the hydrogeologic profession. The District’s expert, Richard Burklew, believes the three APTs conducted at Test Sites
1 and 3 were adequate for purposes of determining appropriate aquifer parameters.
Two APTs were conducted by BFA at Test Site 1. The first test was conducted on January 30-31, 2001, when Well UF-1D was pumped at about 700 gpm or approximately 1 mgd for 44-48 hours, and Wells UF-1S and SA-1 were used as monitor wells. The second test was conducted on April 8-12, 2003, when Well UF-1D was pumped at about 700 gpm or approximately 1 mgd for 96 hours, and Wells UF-1S and SA-1 were used as monitor wells.
Using several analytical curve-matching techniques, BFA calculated a transmissivity of 7,300 ft2/day and a storativity of about 0.00036 on the basis of the 2001 APT at Test Site 1. They were unable to calculate a leakance value because the drawdown data did not reasonably fit the curve- matching techniques. For that reason, BFA performed another APT at Test Site 1 in 2003.
Using several analytical curve-matching techniques, BFA calculated a transmissivity of 7,300 ft2/day, a storativity
of 0.00045, and a leakance of 0.00029 day-1 on the basis of the 2003 APT at Test Site 1.
One APT was conducted by BFA at Test Site 3 on April 10-13, 2001. Well UF-3D was pumped at about 700 gpm or approximately 1 mgd for 70 hours, and Wells UF-3S and SA-3 were used as monitor wells.
Using several analytical curve-matching techniques, BFA calculated a transmissivity of 7,450 ft2/day, a storativity of 0.0002, and a leakance of 0.00026 on the basis of the 2001 APT at Test Site 3. However, because of problems with the test, leakance was not considered a good match for the analytical techniques.
Leakance values determined by BFA from the APTs conducted at Test Sites 1 and 3 were based on the application of analytical curve-matching techniques. The leakance values determined through the conventional type curve-matching techniques employed by BFA are typically higher than the actual leakance values. They are also inherently limited because they assume the calculated leakance is due entirely to the ICU rather than a combination of the ICU and MCU as is the case at the Area IV Wellfield. The analytical techniques employed by BFA were unable to calculate separate leakance values for the ICU and the MCU. The best way to determine leakance values for each of these confining units was to use a MODFLOW model and observed
head difference data. This was done by the City’s consultant, SDI, and is described in greater detail, infra.
In January 2004, several APTs were conducted using two SAS wells referred to as Test Sites 4 and 6. These test sites are located more than 3 miles from the Clark property. Constant rate and variable rate APTs were conducted at both sites. During the constant rate tests, 230 gpm or about 0.33 mgd was pumped from the SAS well. Using several analytical curve-matching techniques, BFA calculated a transmissivity of 2,500 ft2/day for the surficial aquifer at those locations.
Water Quality Data
Consistent with the general understanding of the freshwater groundwater tongue extending from Volusia into Brevard County, the TDEM performed by SDII Global indicated that the depths to the 250 mg/l and 5,000 mg/l chloride concentrations decrease as one proceeds south along the FEC ROW. For example, the depths to the 250 mg/l and 5,000 mg/l chloride concentrations were 442 feet and 542 feet, respectively, at the northernmost test site, which is somewhat north of the City’s Test Site 1. The depth to the 250 mg/l and 5,000 mg/l chloride concentrations were 406 feet and 506 feet, respectively, at the southernmost test site, which is somewhat south of the City’s Test Site 2.
Sixteen water quality grab samples were collected every 20-30 feet as the test production well at Test Site 1 was drilled, beginning at 120 feet below land surface and ending at
500 feet below land surface. This type of sampling is referred to as drill-stem testing. The chloride concentrations in the samples collected from 120 feet and 480 feet below land surface were 59 mg/l and 879 mg/l, respectively. The chloride concentrations in these samples did not exceed 250 mg/l until a depth of 460 feet below land surface was reached.
Six water quality grab samples (drill-stem tests) were collected every 20-30 feet as the test production well at Test Site 2 was drilled, beginning 120 feet below land surface and ending 210 feet below land surface. The chloride concentrations in the samples collected from 120 feet and 210 feet below land surface were 124 mg/l and 845 mg/l, respectively. The chloride concentrations in these samples did not exceed 250 mg/l until a depth of 180 feet below land surface.
Fourteen water quality grab samples (drill-stem tests), were collected every 20-30 feet as the test production well at Test Site 3 was drilled, beginning at 120 feet below land surface and ending at 500 feet below land surface. The chloride concentrations in the samples collected from 120 feet and 500 feet below land surface were 45 mg/l and 90 mg/l,
respectively. The chloride concentrations in these samples never exceeded 90 mg/l.
A packer test is a procedure used to isolate a particular well interval for testing. It is performed using an inflatable packer on the drill stem, which is placed at the interval to be blocked. The packer is inflated with water or air to isolate the interval to be sampled. A packer test can be used to collect water samples for analysis.
Several water quality grab samples were collected in packer tests at specific depth intervals at Test Site 1. At the interval of 331-355 feet below land surface one sample was taken with a chloride concentration of 672 mg/l. At the interval of 331-400 feet below land surface, one sample was taken with a chloride concentration of 882 mg/l. Finally, at the interval of 442-500 feet below land surface two samples were taken with chloride concentrations of 2,366 mg/l and 2,2712 mg/l.
Several water quality grab samples were collected in packer tests at specific depth intervals at Test Site 3At the interval of 270-295 feet below land surface, two samples were taken with chloride concentrations of 74 mg/l and 450 mg/l. At the interval of 340-400 feet below land surface, two samples were taken with chloride concentrations of 64 mg/l and 134 mg/l. Finally, at the interval of 445-500 feet below land surface, two
samples were taken with chloride concentrations of 1,458 mg/l and 2,010 mg/l.
No packer test samples were collected at Test Site 2, where it was clear that water quality was too poor to be used as a fresh groundwater source.
The packer test samples collected at Test Sites 1 and
3 were collected using a higher pumping rate than typically recommended by the DEP and the United States Environmental Protection Agency (EPA). Consequently, the chloride concentrations in these samples are probably higher than the chloride concentrations found in the undisturbed groundwater at those depths. Since the packer sits on top of the borehole and restricts flow from above, it generally is reasonable to assume that a packer test draws more water from below than from above the packer. However, if transmissivity is significantly greater just above the packer, it is possible that more water could enter the packer from above.
Seven water quality grab samples were collected every
12 hours during the 2001 APT at Test Site 1. The chloride concentrations in the first and last grab sample were 59 mg/l and 58 mg/l, respectively.
Seven water quality grab samples were collected every
12 hours during the 2001 APT at Test Site 3. The chloride
concentrations in the first and last grab samples were 19 mg/l and 52 mg/l, respectively.
Nine water quality grab samples were collected every
12 hours during the 2003 aquifer performance test at Test Site
The field-measured chloride concentrations in the first and last grab samples were 56 mg/l and 55 mg/l, respectively. The laboratory measured chloride concentrations in the first and last grab samples were 66 mg/l and 74 mg/l, respectively.
The average chloride concentration for the water samples collected during the three APTs at Test Sites 1 and 2 was about 50 mg/l.
Water is composed of positively charged analytes (cations) and negatively charged analytes (anions). When cations predominate over anions, the water is said to have a positive charge balance; when anions predominate over cations, the water is said to have a negative charge balance. Theoretically, a sample of water taken from the groundwater system should have a charge balance of zero. However, in real life this does not occur because every sample contains some small trace elements that affect its charge balance. Therefore, in the field of hydrogeology, a positive or negative charge balance of 10 percent or less is accepted as a reasonable charge balance error, and this standard has been incorporated in the
permit conditions recommended by the District for the City’s permit.
With one exception, all the water quality samples collected by BFA from Test Sites 1-3 had an acceptable charge balance. The one exception was a sample collected from the packer interval of 270-295 feet below land surface at Test Site
3 with a chloride concentration of 74 mg/l. This sample has a positive charge balance of 32.30 percent.
The sample collected from the packer interval of 270-
295 feet below land surface at Test Site 3 has an overabundance of cations probably caused by grouting and cementing of the packer prior to taking the sample. Since chloride is an anion and not a cation, any error associated with this sample would not effect the validity of the 74 mg/l chloride concentration measured in this sample. This conclusion is also supported by the fact that two samples were collected from the same well at a packer interval of 340-400 feet below land surface with acceptable charge balances and they contained chloride concentrations of 64 mg/l and 134 mg/l.
The District’s experts, Richard Burklew and David Toth, believe the 450 mg/l chloride concentration measured in a sample taken from the packer interval of 270-295 feet below land surface at Test Site 3 is a faulty measurement and should be discarded as an outlier. Dr. Toth testified that the sodium to
chloride ratio indicates there was a problem with this measurement, which would call into question the reported chloride value.
In 2004 and 2005, the City collected SAS water quality samples from Test Sites 4 and 6 and Monitor Wells MW-1 and RW-1 near Test Site 1. The samples were analyzed for all applicable water quality standards, which might preclude use of water from the SAS extraction wells to directly augment wetlands. The analyses found that the SAS water quality near the proposed extraction wells was very similar to the SAS water quality near the Area IV production wells and that water could be applied to the wetlands without any adverse water quality consequences.
Area IV UFAS Flow Patterns and Basin Boundaries
Although the United States Geologic Survey (USGS) potentiometric surface maps do not show any data points in the vicinity of the proposed Area IV Wellfield, and they are not sufficient by themselves to formulate opinions regarding the future operation or impacts of the proposed wellfield, Petitioners contend that these potentiometric surface maps demonstrate that the freshwater found in the UFAS at the Area IV Wellfield is due to local freshwater recharge only and not freshwater flow from the northwest. They point to a regional report indicating that there is a groundwater basin divide just
north of the Area IV Wellfield. This report is based on a 1980 USGS potentiometric surface map. However, another regional report indicates that the groundwater basin divide occurs south of the Area IV Wellfield. This report is likely based on a 1998 USGS potentiometric surface map. Because of the lack of data points in rural northwest Brevard County, the City did not rely on any groundwater basin divide maps, but rather collected site specific information regarding the proposed Area IV Wellfield.
The District’s expert and the Petitioners’ own expert (the sponsor of Petitioners' potentiometric surface map exhibits) noted several errors in the flow direction arrows added by Petitioners to the maps. In addition, after reviewing the potentiometric surface maps presented by Petitioners, the District’s expert concluded that, in addition to local freshwater recharge, the predominant flow into the vicinity of the Area IV Wellfield is generally from the northwest and southwest. To confirm his opinion, the District’s expert examined the head difference data collected in July 2006. At well UF-1S, the UFAS observation well at site 1, the elevation in the well was 16.27 NGVD. At site 3, which is southeast of site 1, the elevation in the UFAS observation well was 15.68 NGVD. At site 2, which is southeast of site 3, the elevation in the UFAS well was 13.87 NGVD. Since water generally flows from the highest to lowest head measurements, these measurements
indicated that water would have been flowing from the northwest to the southeast in the vicinity of Area IV. However, the potentiometric surface can change both seasonally and yearly; likewise, the basin boundaries may also change.
SAS and UFAS Drawdown
Predicting drawdown in the SAS and UFAS in the vicinity of the proposed Area IV Wellfield is important to several permitting criteria, including interference with existing legal uses and impacts on wetlands, both of which relate to the public interest.
During the permit application review process, the City submitted a succession of models to provide reasonable assurance that the proposed Area IV Wellfield would not result in unacceptable drawdown. Initially, BFA prepared and submitted groundwater flow simulations of the Area IV Wellfield prepared using an analytical model known as the “Multi-Layer/SURFDOWN Model.” Although the District initially accepted the submission as providing reasonable assurance to support the District's initial TSR, Miami Corporation petitioned and criticized the City's model as not actually providing reasonable assurance, both because of its predicted SAS drawdown and because it was an analytical model (which can only represent simple conditions in the environment, assumes homogenous conditions and simple
boundary conditions, and provides only a model-wide solution of the governing equation).
By comparison, a numerical model allows for complex representation of conditions in the environment, heterogeneous conditions and complex boundary conditions, and cell-by-cell iterative solutions of the governing equation that are typically performed by a computer. Over the past 10 to 15 years, a numerical model called MODFLOW has become the standard in groundwater modeling throughout the United States and much of the world. All of the Florida water management districts utilize MODFLOW or are familiar with it, so it is a model of choice today for groundwater flow modeling.
Despite Miami Corporation's petition, the City and the District maintained that reasonable assurance had been given that operation of Area IV would not result in unacceptable drawdown. Miami Corporation's petition was scheduled for a final hearing in June 2005 that was continued until September 2005 after the first revised TSR was issued in May 2005. The final hearing was continued again until February 2006 to allow discovery and hearing preparation by Vergie Clark, who filed her petition in July 2005. As the case proceeded towards a February 2006 final hearing on the pending petitions, the City eventually made what actually was its second attempt to develop a calibrated MODFLOW model of the Area IV Wellfield.
Unbeknownst to the District, BFA already had attempted to develop a MODFLOW Model of the Area IV Wellfield in 2004, with the assistance of Waterloo Hydrogeologic, Inc. (WHI) (which later was retained as Petitioners’ consultant in this case in a reverse of the Hartman client switch). When BFA ended its efforts with WHI, their efforts to calibrate a MODFLOW model for Area IV that would predict acceptable drawdown was unsuccessful, and none of those modeling efforts were submitted or disclosed to the District.
In the fall of 2005, the City turned to another consultant, SDI, to attempt to develop a calibrated MODFLOW Model of the Area IV Wellfield. SDI initially prepared a so- called MODFLOW model equivalent of the Multi-layer/SURFDOWN Model prepared by BFA. It was presented to District staff at a meeting held in January 2006 for the purpose of demonstrating to District staff that the MODFLOW model equivalent of the Multi- layer/SURFDOWN Model generated results for the Area IV Wellfield that were not very different from the results obtained by BFA using their Multi-layer/SURFDOWN Model. Petitioners criticized several weaknesses in the MODFLOW equivalent model and maintained that the modeling efforts to date did not give reasonable assurance of no unacceptable SAS drawdown. By this time, the District had decided to retain Dr. Peter Huyakorn, a renowned modeling expert. Based on his recommendations, the
District required the City to produce a calibrated MODFLOW model of Area IV (as well as numerical solute transport modeling, which will be discussed below). The scheduled final hearing was continued until September 2006 to allow time for this work to be completed, discovered, and evaluated.
After the continuance, the City had SDI prepare a calibrated MODFLOW model to predict the drawdown that would result from operation of Area IV. SDI produced such a model in March 2006. This model predicted less drawdown. Specifically, a steady-state simulation of a 2.75 mgd withdrawal from the proposed 15 UFAS production wells and a 0.18 mgd withdrawal from the four proposed SAS extraction/wetland augmentation wells predicted the maximum drawdown of the surficial aquifer to be less than 0.5 foot (which, as discussed infra, would be acceptable). (UFAS drawdown, which is not an issue, was predicted to be an acceptable 12 feet.) But Petitioners questioned the validity of the model for several reasons, including its suspect calibration. Dr. Huyakorn also had questions concerning the calibration of SDI's March 2006 MODFLOW model, but subsequent work by SDI satisfied Dr. Huyakorn and the District, which issued the TSR and proposed CUP at issue in May 2006 based in part on SDI's March 2006 MODFLOW model, despite Petitioners' criticisms. The final hearing was continued until September 2006 to give Petitioners time to complete discovery on
SDI's March 2006 MODFLOW model (as well as the City's new solute transport modeling, which is discussed, infra).
To calibrate its March 2006 MODLFOW, SDI first used a transient MODFLOW model to simulate data from the 4-day aquifer performance test (APT) from the Area IV Wellfield sites (the transient APT calibration). (A transient model is used to analyze time-dependent variable conditions and produces a time- series of simulated conditions.) Then, after calibrating to the APT data, SDI used a steady-state, non-pumping MODFLOW model (a time-independent model used to analyze long-term conditions by producing one set of simulated conditions) to simulate the static head difference between the SAS and UFAS (the steady- state head difference calibration). If the head difference simulated in the steady-state calibration run did not match the measured head difference, the ICU leakance was adjusted, and then the revised parameters were rechecked in another transient APT calibration run. Then, another steady-state head difference calibration run was performed in an iterative process until the best match occurred for both calibration models.
In order to achieve calibration, SDI was required to make the ICU leakance value several times tighter than the starting value, which was the value derived in the site-specific APT using conventional curve-matching techniques (and relatively close to the values ascribed to the region in general in the
literature and in two regional models that included Area IV near the boundary of their model domains--namely, the District's East Central Florida (ECF) model, which focused on the Orlando area to the south and west, and its Volusia model, which focused on Volusia County to the north).
SDI's calibrated ICU leakance value derived from calibration to observed static head differences is more reliable than an ICU leakance value derived from an APT using conventional curve-matching techniques. That leaves a question as to the quality of the static head difference measurements used for SDI's calibration.
BFA took static head measurements at SAS and UFAS monitor wells located at Test Sites 1, 2 and 3 in January 2004, April 2004, and July 2006. On each occasion, a downward head gradient was noted at each site, meaning the water table (i.e., the SAS) had a higher elevation than the potentiometric surface of the UFAS. In January 2004, the measured head difference at Test Sites 1, 2 and 3 were 6.2 feet, 5.5 feet and 5.9 feet, respectively. In April 2004, the measured head differences at Test Sites 1 and 3 were 8.1 feet and 8.1 feet, respectively. In July 2006, the measured head differences at Test Sites 1, 2 and
3 were 8.6 feet, 6.6 feet and 9.3 feet, respectively. The average of these observed head differences for the Area IV Wellfield was 7.46 feet.
BFA's static head difference measurements included both wet and dry seasons. The measurements do not show significant differences between seasons and suggest that static head difference remains fairly constant at the Area IV Wellfield year round. This is typical of head difference data collected from hundreds of other Florida locations because the hydrologic systems seek equilibrium.
Petitioners questioned taking an average of the head difference measurements because the region had experienced a rainfall deficit of 17 inches over the 12 months prior to time the measurements in July 2006 were taken. By itself, a rainfall deficit would not affect head difference measurements because the hydrologic system would seek equilibrium. But there was evidence of a possibly significant rainfall near Area IV not long before the July 2006 measurements. If significant rain fell on Area IV, it could have increased the static head differences to some extent. But there was no evidence that such an effect was felt by Area IV.
Petitioners also contend for several other reasons that the static head differences used by SDI as a calibration target were "not what they are cracked up to be." They contend that "limited spatial and temporal extent . . . renders them inappropriate calibration targets." But while the site-specific static head difference measurements were limited, and more
measurements at different times would have increased the reliability of the average static head difference used in SDI's steady-state calibration, the head difference measurements used were adequate. For a groundwater model of Area IV, they were as good as or better than the head differences used by Petitioners' expert modeler, Mr. LaFrenz of Tetratech, who relied on SAS and UFAS head levels from the regional-scale ECF model, which were measured by the United States Geological Survey (USGS) in May and September 1995.
Petitioners also contended that the measured head differences used by SDI for the steady-state calibration of the March 2006 MODFLOW model were significantly higher than other measured head differences in the general vicinity of Area IV. One such location is Long Lake, which has saltwater and an obviously upward gradient (i.e., a negative head difference between the SAS and UFAS), whereas SDI's MODFLOW depicts it as having a five-foot downward gradient (positive head difference). However, all but one of those measurements (including from Long Lake) were from locations five or more miles from Area IV. In addition, the accuracy of the measurements from the closer location (and all but one of the more distant locations) was not clear, so that the seemingly inconsistent head differences measurements may not be indicative of actual inconsistency with the head difference measurements used by SDI.
Petitioners also accused the City and its consultants of "playing games with specific yield" to achieve calibration with a tighter-than-appropriate ICU leakance value. But the City and the District adequately explained that there was no merit to the accusations. It was appropriate for SDI to use just the relatively small specific storage component of SAS storativity (the 0.001 value) in its transient calibration runs, instead of the larger specific or delayed yield component. Storativity is not utilized at all in the MODLFOW steady-state calibration runs and steady-state simulations.
Based on the foregoing, it is found that Petitioners' factual disputes regarding SDI's calibrated ICU leakance value do not make the City's assurance of no unacceptable drawdown provided by its MODFLOW simulations unreasonable. That leaves several other issues raised by Petitioner with regard to the SDI's March 2006 MODFLOW model.
In calibrating its MODFLOW model, SDI utilized a value for the MCU leakance that was twice as leaky as the published literature values for the area, which Petitioners claim would reduce simulated SAS drawdown. Although the use of a higher MCU leakance value in the model may result in a prediction of less SAS drawdown, the actual effect, if any, on the predicted drawdown, was not made clear from the evidence.
In any event, an MCU leakance value for Area IV calibrated to site-specific data is more reliable than regional values.
Petitioners also accused the City and its consultants of using inappropriate or questionable boundary conditions, topography, and depth to the water table. They also contend that incorrect topography--namely, a nonexistent five-foot ridge or mound northwest of Area IV--provides an artificial source of water for SDI's March 2006 MODFLOW model. But the boundary conditions for SDI's March 2006 MODFLOW model were clear from the evidence and were appropriate; and SDI's topography and water table depth were reasonably accurate (and on a local scale, were as or more accurate than the USGS topographic maps Petitioners were comparing). Besides, Dr. Huyakorn ran the Tetratech model with SDI's leakance value instead of Tetratech's value and got virtually the same drawdown results, proving that differences in topography between the two models made virtually no difference to the drawdown predictions of either model. As for the so-called "flow from nowhere," particle-tracking simulations conducted by experts from both sides established that, with pumping at 2.75 mgd, no water would enter the Area IV production zone from anywhere near the five-foot ridge area for at least 100 years. This gave reasonable assurance that the five-foot ridge or mound had no effect on the simulated results from SDI's March 2006 MODFLOW model.
Petitioners also contend that the City's failure to simulate drawdown from pumping during the dry season, as opposed to a long-term average of wet and dry seasons, constituted a failure "to provide reasonable assurances as to the conditions that can be expected as a result of the anticipated operation of the wellfields." But the evidence was clear that long-term, steady-state groundwater model simulations are appropriate and adequate to provide reasonable assurance for CUP permitting purposes. See "Drawdown Impacts," infra. By definition, they do not simulate transient conditions such as dry season pumping.
The SDI model predicts a maximum drawdown, from a
2.75 mgd withdrawal from all fifteen UFAS production wells and a
0.18 mgd withdrawal from the four SAS extraction wells, of slightly less than 0.5 feet in the SAS and of 12.0 feet in the UFAS in the immediate vicinity of the Area IV Wellfield. SDI’s model predicts a drawdown of 0.11 feet (approximately 1 inch) in the SAS and a drawdown of 2.2 feet in the UFAS at Ms. Clark’s property, which is located approximately 1 to 1.5 miles north of the Area IV Wellfield.
It is found that SDI's March 2006 MODFLOW model for Area IV is the best such model in evidence. That is not to say that the drawdown predicted by SDI's model is a certainty. The other models were not proven to be better than SDI's, but they did demonstrate that simulated results would vary significantly
in some cases if SDI's calibration and calibrated ICU leakance values were incorrect. Having more good hydrologic information would have made it possible to reduce the uncertainties present in SDI's model, but it is found that SDI's March 2006 MODFLOW model was sufficient to give reasonable assurance as to SAS and UFAS drawdown from pumping at 2.75 mgd from the UFAS and 0.18 mgd from the SAS for wetland augmentation.
Drawdown Impacts
As indicated, once drawdown is predicted with reasonable assurance, both interference with existing legal uses and impacts on wetlands, which relate to public interest, must be evaluated.
Interference with Legal Uses
Using SDI's March 2006 MODFLOW model, the City gave reasonable assurance that the drawdown predicted from pumping at
2.75 mgd from the UFAS and 0.18 mgd from the SAS for wetland augmentation will not interfere with existing legal users. The nearest existing legal users are located about one mile northwest and two miles east/southeast of the nearest proposed production well. The City’s MODFLOW modeling scenarios indicate that maximum drawdown in the SAS will be less than 0.5 feet and minimal (at most 2.2 feet) in the UFAS at the nearest active existing legal users. Obviously, drawdown would be much less at
0.5 to 0.75 mgd from the UFAS (with probably no wetland augmentation required).
As indicated, the drawdown predicted by SDI's March 2006 MODFLOW model is not a certainty. Although not likely based on the more persuasive evidence, if actual drawdown approximates the drawdown predicted by the Tetratech model, there could be interference with existing legal users. (The Tetratech model predicts that the long-term average reduction in the water table of approximately 1.6 feet of drawdown near the center of the wellfield and drawdown of 0.4 feet to 0.5 feet extending out more than a mile from the proposed Area IV Wellfield.) There probably still would be no interference with existing legal users with pumping at 0.5 to 0.75 mgd from the UFAS (with probably no wetland augmentation required).
In the event of that much actual drawdown and unanticipated interference from the City’s pumping, “Other Condition” 15 of the proposed permit requires that it be remedied. See Finding 36, supra. There is no reason to think such interference could not be remedied.
Environmental Impacts from Drawdown
Miami Corporation’s property in the vicinity of the proposed Area IV Wellfield is a mosaic of pine flatwoods uplands interspersed with wetlands. The wetlands are mostly cypress
swamps, with some areas of hardwood swamp, marshes, and wet prairies.
Miami Corporation's property is managed for timber and is also used for cattle grazing and hunting. Miami Corporation has constructed a network of roads and ditches on its property, but overall the wetlands are in good conditions.
The areas east and west of the proposed Area IV Wellfield consist of cypress strands, which are connected wetlands. Compared to isolated wetland systems, connected wetlands are typically larger, deeper, and connected to waters of the state. They tend to have hardwood wetland species.
Connected wetlands are less vulnerable to water level changes brought about by groundwater withdrawals because they tend to be larger systems and have a greater volume of water associated with them. They are able to withstand greater fluctuations in hydroperiods than isolated herbaceous wetland systems.
Isolated wetland systems are landlocked systems.
They tend to be smaller in size and shallower than connected wetland systems. Isolated systems tend to be more susceptible to changes in hydrology than larger connected systems.
The upland plant communities present near the proposed Area IV Wellfield include pine flatwoods that have been altered by Miami Corporation's timber operations. There is a
large area surrounding the Area IV Wellfield to the north that consists of forest regeneration after timbering.
There was evidence of the presence of the following listed animal species at the site of the proposed Area IV Wellfield: wood storks, roseate spoonbills, ibis, bald eagles, Sherman fox squirrels, American alligator, sandhill cranes, wood storks, black bear, and indications of gopher tortoises. The habitat in the vicinity also supports a number of other listed species that were not observed. The following listed plants species were also observed during the environmental assessment and site visits: hooded pitcher plants, water sundew, pawpaw and yellow butterwort.
Ms. Clark’s property adjoins a cut-over cypress swamp on the western side of her property, and there is also a small man-made fish pond in her backyard. Some clearing has taken place in the wetland system on the back portion of Ms. Clark’s property. What appears to be a fire break on Ms. Clark’s property encroaches upon the wetland system. The wetlands on Ms. Clark’s property have experienced some human activities such as trash dumping and clearing, which have resulted in a degradation of those systems. Some trees within the wetland systems on the back portion of Ms. Clark’s property have been logged. For the most part, the hydrology appears to be normal. However, some invasive species have encroached upon the system
due to the clearing that has taken place. There was no evidence of listed plant or animal species present on Ms. Clark’s property.
If drawdown is of the magnitude predicted by the SDI's March 2006 MODFLOW model, unacceptable environmental impacts from drawdown would not be anticipated. At 0.5 or 0.75 mgd, there clearly would not be any unacceptable environmental impacts.
In addition, “Other Condition” 12 of the proposed permit requires the City to perform extensive environmental monitoring. The environmental monitoring plan proposed for the Area IV Wellfield provides reasonable assurance that changes to wetland hydrology and vegetation due to groundwater withdrawals will be detected before they become significant.
“Other Condition” 12 of the proposed permit prohibits the City from pumping any water from the production wells until the monitoring network is in place. The baseline monitoring will give a clear indication of the existing conditions prior to the production wells coming on-line.
Once the production wells are online, the City will continue the same procedures that they conducted prior to the production wells coming online. This will allow the City and the District to monitor the effects of pumping. The City’s proposed environmental monitoring plan is adequate to detect
drawdown impacts and is consistent with environmental monitoring plans that have been developed for other wellfields throughout the State of Florida.
Since the City has given reasonable assurance that there will not be environmental harm from drawdown, the proposed permit does not propose mitigation. If unanticipated harm is detected, “Other Condition” 24 of the proposed permit requires the City to implement an avoidance and minimization plan to rehydrate the wetlands and restore the water levels to normal levels and natural hydroperiods by augmenting the water in the affected wetlands with water pumped from SAS wells and piped to the affected wetlands. “Other Condition” 24 includes specific timeframes for implementing wetland rehydration in the event unanticipated impacts were to occur. In addition, the City could, on its own, change its pumping schedules. If an impacted wetland is near a particular well, the City could reduce or shut off water withdrawals from that well and thereby restore water levels in the wetland.
Direct augmentation of wetlands has been used at other facilities such as those of Tampa Bay Water and Fort Orange. The direct augmentation at these other sites appears to be effective. Direct augmentation of wetlands has proven to be a feasible means of offsetting adverse changes in wetlands due to groundwater withdrawals, at least in some circumstances.
There is a viable source of water that can be utilized to augment these wetland systems, namely a large canal south of the production wells. Based on the predicted drawdown, SDI estimated the quantity of water needed for implementation of the avoidance and minimization plan to be 0.18 mgd. The water quality in the canal is comparable to the water quality within any wetland systems that would be affected by drawdown.
The City plans to have its augmentation plan in place prior to the production wells coming online. In that way, if changes are observed within the wetland systems, the augmentation plan could be implemented in relatively short order to alleviate any impacts that might be occurring as a result of the production wells.
The success of the augmentation plan depends on the extent of actual drawdown. If actual drawdown approximates Tetratech's predictions, environmental impacts would not be acceptable, and there would not be reasonable assurance that the augmentation plan would be sufficient to mitigate the environmental impacts. If drawdown is of the magnitude simulated in the City’s MODFLOW model, reasonable assurance was given that, if needed, the avoidance and minimization plan developed for the Area IV Wellfield would be capable of offsetting any adverse changes in wetlands and other waters detected through the environmental monitoring plan. If the City
pumps not more than 0.75 mgd, the avoidance and minimization plan developed for the Area IV Wellfield probably would be unnecessary but certainly would be capable of offsetting any adverse changes in wetlands and other waters that would be detected through the environmental monitoring plan.
If unanticipated environmental harm occurs due to excessive actual drawdowns, and the harm cannot be avoided either by the augmentation plan or by altering the pumping schedule, or both, the District can revoke all or part of the permit allocation under “Other Condition” 23. This ability gives reasonable assurance that no unacceptable environmental harm will occur even if actual drawdown approximates Tetratech's predictions.
Saltwater Up-coning and Intrusion
Predicting saltwater movement towards the production zone of the proposed Area IV Wellfield is important to several permitting criteria, including interference with existing legal uses and the ability of the resource to provide the requested allocation of freshwater, both of which relate to the public interest.
During the permit application review process, the City submitted a succession of models to provide reasonable assurance that the proposed Area IV Wellfield would not result in unacceptable saltwater intrusion. Initially, BFA prepared
and submitted solute transport simulations using an analytical model known as the “UPCONE Model.” The District initially accepted the submission as providing reasonable assurance to support the District's initial TSR. Despite Miami Corporation's petition, the City and the District maintained that reasonable assurance had been given that operation of Area IV would not result in unacceptable saltwater intrusion based on the "UPCONE Model." As indicated, supra, Miami Corporation's petition was scheduled for a final hearing in June 2005, but the hearing was continued until February 2006. As the case proceeded towards a final hearing in February 2006, the City not only turned to SDI to develop the numerical MODFLOW model, it also turned to SDI to develop a numerical solute transport model that would couple the MODFLOW groundwater flow equations with advection dispersion solute transport equations to simulate the movement of variable density saline groundwater in response to stresses.
In addition to the initial boundary conditions, aquifer parameters and stresses specified for a groundwater model, a solute transport model requires solute parameters such as chloride concentrations, dispersivity and effective porosity.
SEAWAT is a solute transport model code that combines the MODFLOW, which provides the groundwater flow component, with the MT3DMS code, which provides the mass transport component. When coupled with MODFLOW, the MT3DMS code tracks the movement
of variable density water and performs internal adjustments to heads in the flow model to account for water density. Like MODFLOW, SEAWAT is capable of simulating the important aspects of the groundwater flow system, including evapotranpiration, recharge, pumping and groundwater flow. It also can be used to perform both steady-state or transient simulations of density- dependent flow and transport in a saturated zone. It was developed in the late 1990s and is rapidly becoming the standard for solute transport modeling throughout the United States. It is used by many water management agencies in the State of Florida.
Initially, SDI used SEAWAT version 2.1 to simulate movement of saline water towards the Area IV Wellfield. The first such simulation was prepared in March 2006 using manually- adjusted head values along the eastern model boundary. It incorporated SDI's March 2006 MODFLOW model. The District, in consultation with Dr. Huyakorn, required SDI to perform what was termed a "sensitivity run" with reduced chloride concentrations in the eastern boundaries (5,000 mg/l versus 19,000 mg/l) to better match actual measurements recorded in wells in the vicinity. In April 2006 SDI prepared and submitted those simulations.
After reviewing the March and April 2006 SEAWAT 2.1 simulations, Petitioners' consultants criticized the manner in
which starting chloride concentrations in the vicinity of the Area IV Wellfield were input into the models. In those models, SDI had input initial chloride concentration at 50 mg/l throughout the depth of the UFAS. The model was then run for
100 years with no pumping to supposedly arrive at a reasonable starting chloride concentration for the UFAS. Then, the model was run for 25 years with pumping at 2.75 mgd. However, the initial chloride concentrations at the beginning of the pumping run still did not comport well with actual measurements that were available.
After Petitioners raised the issue of the starting chloride concentrations assigned to the UFAS in SDI's March and April 2006 SEAWAT 2.1 runs, the final hearing was continued until September 2006 to give Petitioners time to complete discovery on those models (as well as on SDI's March 2006 MODFLOW model, as discussed supra). During a deposition of Dr. Huyakorn in July 2006, he recommended that the District require SDI to perform another simulation (also termed a "sensitivity run") using starting chloride concentrations more closely comporting with known measurements. (There also were some changes in the constant chloride concentrations that were part of the boundary conditions on the western side of the model domain.) This resulted in SDI's early August 2006 SEAWAT 2.1 simulation of 15 years of pumping at 2.75 mgd.
Petitioners also criticized the City for not using a newer version of SEAWAT, called SEAWAT 2000, as well as for using chloride concentrations as inputs for its SEAWAT 2.1 model simulations instead of total dissolved solids (TDS). (SEAWAT
2.1 required input of TDS, not chlorides; SEAWAT 2000 allowed chlorides to be input. Not until the last day of the final hearing was it pointed out by Dr. Huyakorn that using chlorides instead of TDS caused SDI's SEAWAT 2.1 simulations to over- predict saltwater intrusion.) As a result of Petitioners' criticisms, the City had SDI re-run both the April and early August SEAWAT 2.1 models in late August 2006 using SEAWAT 2000 (which the City and the District also termed "sensitivity runs.")
Because the SEAWAT 2000 simulations would be time- barred from use in the City's case-in-chief under pre-hearing requirements, and whether they could be used in rebuttal could not be determined at that point in time, the City requested another continuance, this time until December 2006, to give Petitioners time to discover the SEAWAT 2000 model simulations.
During Petitioners' discovery of SDI's August SEAWAT 2000 model simulations, it came to SDI's attention that SDI was not calculating mass outputs from the model correctly. Those errors were corrected by SDI in September 2006.
SDI's corrected August 2006 SEAWAT 2000 simulation predicted that, after 15 years of pumping at 2.75 mgd, the chloride concentration in the Area IV production wells would increase from 54 mg/l to 227 mg/l.
After the 15-year pumping run, SDI's corrected August 2006 SEAWAT 2000 simulation predicted that the chloride concentration in several of the southernmost production wells would exceed 250 mg/l. At 17.5 years of the pumping run simulation, the simulation predicted that the entire wellfield would have chlorides in excess of 250 mg/l.
That prediction does not, however, mean the chloride concentration in these wells will exceed 250 mg/l in actual operation. The SDI model contains several conservative assumptions that magnified the potential chloride concentrations in those wells. First, it was assumed all the production wells would be drilled to 250 feet below land surface, while the City will likely drill the southernmost wells to a shallower depth. Additionally, the wellfield production rate used in the model was not optimized for water quality. Finally, the model was not set up to simulate a wellfield operation plan that turned wells on and off based on the saline water monitoring plan. For the sake of simplicity, the model assumed that all the wells would operate 24 hours a day, 7 days a week, for the entire 15 year period.
Petitioners continued to maintain for several reasons that SDI's SEAWAT models do not provide reasonable assurance that operation of the Area IV Wellfield will not result in unacceptable saltwater intrusion.
Chlorides versus TDS
Petitioners criticized SDI's corrected SEAWAT 2000 model for still not inputting chlorides correctly. While SEAWAT 2000 allows the input of chlorides instead of TDS (and input of chlorides instead of TDS is recommended since chloride is a more stable chemical than some of the other components of TDS), they must be input correctly. However, while Petitioners demonstrated that the chlorides were not input correctly, causing the model to under-calculate fluid density, Dr. Huyakorn clarified in rebuttal that under-calculating fluid density caused SDI's SEAWAT 2000 models to over-predict saltwater intrusion into the wellfield.
Starting Chloride Conditions
Petitioners continued to question the representation of initial chloride concentrations in the SEAWAT models.
SDI's SEAWAT models included multiple vertical grid layers to represent conditions better than the layering used in the MODFLOW set-up. The SAS was represented by layer 1, the ICU by layer 2, the UFAS by layers 3 through 14, the MCU by layer 15, and the LFAS by layers 16 and 17.
SDI used a chloride concentration of 0 mg/l for the SAS and ICU in its August 2006 SEAWAT model, which probably does not represent the actual initial condition but is probably close enough since the SAS is recharged by rainfall that typically has very low (1 to 2 mg/l) chloride levels. SDI used a chloride concentration of 2,500 mg/l for the MCU and a chloride concentration of 5,000 mg/l for the LFAS in its August 2006 SEAWAT model, which are reasonable initial chloride values for the Area IV Wellfield.
To develop the initial chloride concentration conditions of the UFAS for its August 2006 SEAWAT model, SDI first plotted the available water quality data (63 well-data points) on a map of the Area IV Wellfield area. After examining the distribution of the data, SDI divided the UFAS into two layers to represent the upper UFAS (above –200 feet NGVD) and the lower UFAS (below –200 feet NGVD). Then, using various scientific studies containing chloride concentration maps, groundwater recharge/discharge maps (recharge indicating an area is more likely to have low chlorides in the UFAS and discharge indicating an area is more likely to have high chlorides), and maps showing the shape and extent of the freshwater lens in the area, plus SDI’s own knowledge of groundwater flows and expected higher chloride concentrations along the coast and St. Johns River, SDI used scientifically accepted hand-contouring
techniques to represent the initial chloride concentration conditions of the upper and lower UFAS on maps. SDI’s two hand- contoured chloride concentration maps were reviewed and accepted by the District’s experts and reflect a reasonable representation of the initial chloride concentration conditions in the UFAS in the Area IV Wellfield. Using the two hand- contoured chloride concentration maps, SDI input the chloride concentration values from those maps into its August 2006 SEAWAT model. The chloride concentration values from the upper UFAS map were input into layers 3 through 7 of SDI’s August 2006 SEAWAT model. The chloride concentration values from the lower UFAS map were input into layers 11 through 14 of SDI’s August 2006 SEAWAT model.
SDI input the average of the chloride concentration values from the upper and lower UFAS layers into the middle UFAS (layers 8 through 10). It is appropriate to average the chloride values between the upper and lower UFAS in the Area IV Wellfield because the saline water interface is not that sharp and occurs near the bottom of the UFAS (unlike conditions 11 miles to the south).
Petitioners accuse SDI, the City, and the District of ignoring unfavorable chloride data in setting up its August 2006 SEAWAT 2000 model. The evidence was that all chloride data was considered and evaluated.
Mr. Davis and the District's experts did not rely on the 450 mg/l chloride packer test measurement taken from the interval between 270 and 295 feet at Test Site 3 in preparing the contour maps of the UFAS because the chloride measurement was deemed inaccurate because the sodium to chloride ratio is out of balance.
Mr. Davis and the District's experts did not utilize the 2,336 mg/l and 2,717 mg/l chloride concentration packer test measurements at 442-500 feet below land surface at Test Sites 1 and 3 to prepare the chloride contour maps for the UFAS because they believed these measurements from the MCU.
Mr. Davis and the District's experts deemed it inappropriate to utilize a 845 mg/l chloride value reported for Test Site 2 to prepare the chloride contour for the lower portion of the UFAS because this sample was collected at just
210 feet below land surface and because a 500 mg/l contour line separates a 882 mg/l measurement at Test Site 1 from a 134 mg/l measurement at Test Site 3. The decision not to include the Test Site 2 data also is supported by the particle tracking modeling prepared by the Petitioners and the City using the groundwater component of the SDI SEAWAT model and the TetraTech model, which show that water from Test Site 2 will not enter the Area IV production wells for at least 100 years with pumping at
2.75 mgd.
The chloride contour maps developed by Mr. Davis and the District experts were consistent with previous studies conducted by the USGS and the District in the region. For example, the chloride contours shown on City Exhibit 142 for the upper portion of the UFAS are generally consistent with Figure
35 of the 1990 USGS Report by Charles Tibbals and Figure 15 of the 1999 District Report by Toth and Boniol.
The two chloride contour maps developed by Mr. Davis and the District's experts are a reasonable representation of the existing water quality of the UFAS in the region of the Area IV Wellfield based on the available data.
Mr. Davis used the 882 mg/l chloride concentration packer test measurement from the interval between 331 and 400 feet at Test Site 1 as the starting chloride concentration in four grid cells at the bottom of the UFAS, which Petitioners' experts referred to as a "pinnacle" or "column," that were assigned a chloride value of 700 mg/l. While the representation may not have been realistic, and the "pinnacle" or "column" quickly "collapses" when the model begins to run, the representation was a concession to the existence of the datum even though it appeared at odds with water quality collected from a packer test at Test Site 3 at the same depth interval, which was much fresher. District staff agreed with Davis’
approach to representing the saltier packer test measurement from Test Site 1.
The initial chloride concentrations developed for the UFAS by Mr. Davis and District staff are not inconsistent with the water quality data collected by the Petitioners’ consultants from Long Lake. The lake is located in an area of the map where the chloride concentration in the UFAS, which discharges into the lake at that location, is between 1,000 and 5,000 mg/l.
Mr. Davis decided not to use 2,000 mg/l to represent the bottom layer of the UFAS even though the bottom packer tests performed at Test Sites 1 and 3 showed an average value of 2,000 mg/l at the approximate boundary of the UFAS and the MCU. Instead, he decided to associate this chloride concentration with the MCU because even if the packer had penetrated a portion of the UFAS, he did not believe the measurement was representative of static water quality conditions at that depth. The packers had been pumped for over 4 hours at 25 gpm at Test Site 1 and over 4 hours at 85 gpm at Test Site 3, which could have doubled or tripled the static chloride concentration. As was later shown in sensitivity runs by Petitioners' expert, Dr. Guo, if SDI had incorporated the 2,000 mg/l value at the bottom of the UFAS, the model simulation would have shown unrealistically high initial chloride concentrations in the production wells at the start of pumpage when compared to the
water quality measured during the APTs conducted at Test Sites 1 and 3. (While only one well was pumping at a time, versus the
15 in the model simulations, the single APT well was pumping at approximately three times the rate of the 15 wells in the model simulation.)
Based on all the evidence, it is found that the chloride concentrations used in SDI’s August 2006 SEAWAT model reflect a reasonable representation of the initial chloride concentration conditions in the UFAS in the Area IV Wellfield and were properly input into that model using an appropriate method.
Location of the MCU
Related to the last point is Petitioners' claim that the top of the MCU (i.e., bottom of the UFAS) is incorrectly represented in SDI's SEAWAT models at 450 feet below sea level (approximately 425 feet below land surface). They point to literature values indicating that the depth to the MCU is up to
150 feet greater. However, these reports did not include site- specific data or test wells in the vicinity of the Area IV Wellfield or in northern Brevard County. It was reasonable to consider and rely on site-specific information regarding the depth to the MCU in this case.
BFA determined the approximate location of the MCU by examining cuttings collected during drilling at APT well sites 1
and 3 and by measuring various properties of the aquifer with down-hole geophysical techniques. Based on the site-specific information obtained, the depth to the MCU was determined to be approximately 450 to 475 feet below land surface or –425 to -450 feet NGVD.
The lithologic log for well site 1 indicates the presence of gray/tan limestone between 450 to 460 feet below land surface and light/gray limestone and dolomitic limestone from 460 to 470 below land surface. The lithologic log for well site 3 indicates the presence of tan dolomitic limestone from
450 to 460 feet below land surface and tan limestone and dolomitic limestone from 460 to 470 feet below land surface. According to Petitioners' own expert, Dr. Missimer, the change to a mixture of limestone and dolomite is evidence of the MCU. After examining the video log for well site 1, Dr. Missimer noted a “lithologic change” at 477 feet below land surface (while still disputing BFA's conclusion that the MCU started there.)
One characteristic of the MCU is a lower resistivity.
At well site 1, a reduction in resistance occurred at approximately 470 feet below land surface. Another characteristic of penetrating the MCU is decrease in flow. The flow meter log for well site 1 suggests a decrease in flow at approximately 450 feet below land surface.
On the other hand, it also is true that wells drilled completely into the MCU probably would not produce more than approximately 5 gallons per minute (gpm), whereas the packer test at the bottom of Wellsite 1 was yielding 25 gpm, and the packer test at the bottom of Wellsite 3 was producing 85 gpm. It is possible that the bottom packers were open to both the UFAS and the MCU, which could explain the higher flows.
Petitioners maintain that BFA stopped drilling too soon (500 feet below land surface, or 475 feet below sea level) to ascertain the actual depth to the MCU. While it is true that drilling deeper would have made BFA's determination as to the depth to the MCU more convincing and certain, BFA's approximation of the depth to the MCU was reasonable for purposes of SDI's SEAWAT model.
To the extent that BFA might have been wrong on the depth to the MCU, there was no convincing evidence that the error would have made SDI's SEAWAT model results unreliable. To the contrary, Dr. Huyakorn testified that, even if SDI put the MCU 75 feet too high, the label given to the interval is not critical to the reliability of the modeling results. More important are the parameters for transmissivity and leakance assigned to aquifers and confining units. Dr. Huyakorn testified that, given the aquifer parameters assigned to the
intervals, SDI's SEAWAT modeling results would be reasonably reliable.
Saline Movement Impacts
As indicated, once chloride concentration changes are predicted with reasonable assurance, both interference with existing legal uses and the ability of the resource to provide the requested allocation of freshwater, which relate to public interest, must be evaluated.
Significant saline water intrusion is defined as saline water encroachment which detrimentally affects the applicant or other existing legal users of water, or is otherwise detrimental to the public. (Rule 9.4.2, A.H.). Saline water may encroach from upconing or the vertical movement of saline water into a pumping well, and it may encroach laterally to the well from a saline waterbody like the ocean.
The proposed use associated with the four surficial aquifer extraction wells is so minimal that it clearly would not cause saline water intrusion or harm the quality of this proposed source of water. The focus of attention is the production wells.
The evidence was sufficient to provide reasonable assurance that the proposed consumptive use from the Area IV Wellfield will not cause significant saline water intrusion; further aggravate currently existing saline water intrusion
problems; induce significant saline water intrusion to such an extent as to be inconsistent with the public interest; or harm the quality of the proposed source of water.
First, the long-term constant rate pump tests, which were conducted as part of the APT, give some indication of the potential for saltwater intrusion. While only one well was pumping during the tests, water quality did not degrade at pumping rates that far exceeded what would be approved as part of the proposed permit. During four-day pump tests in which the wells at sites 1 and 3 were pumped at approximately 1 mgd, chlorides never exceeded approximately 74 mg/l.
Second, while (as with drawdown predicted by the groundwater flow modeling) saltwater movement predicted by the City’s SEAWAT simulations is not a certainty, the simulations gave reasonable assurance that the requested allocation could be withdrawn from the Area IV Wellfield without excessive changes to water quality (specifically chlorides) and that there is an adequate thickness of freshwater at the Area IV Wellfield that could supply the requested allocations of water for 15 years without saline water intrusion, especially since it is unlikely that a number of the wells will actually be constructed to the 250-foot depth assumed in the model, particularly as one moves south along the railroad right-of way.
Third, it is even more unlikely that saltwater intrusion will occur before the proposed permit expiration in 2010. Due to the time required to construct the facility, it is anticipated that the Area IV Wellfield will become operational in 2009. Assuming the City seeks to renew the permit, there would be more information on saltwater intrusion for the District to consider on permit renewal.
Since the City provided reasonable assurance as to its proposed withdrawals from Area IV, there clearly is reasonable assurance that withdrawal of not more than 0.75 mgd from Area IV would not result in significant saline intrusion.
The TSR includes proposed “Other Condition” 11 which requires the installation of saline monitor wells. The spatial distribution of these wells is such that the beginning of water quality degradation or saltwater intrusion, either from upconing or lateral intrusion, would not occur without it being detected by these wells. In addition to these monitor wells, proposed “Other Condition” 14 requires water quality samples to be collected from each production well. These wells are to be sampled quarterly for a suite of parameters, including chlorides.
“Other Condition” 25 is proposed as a “safety net” should unanticipated saltwater intrusion occur. If any production well shows a concentration of 250 mg/l chlorides,
then this proposed condition would prohibit further use of the well until the chloride concentration drops. If the monitoring shows a chloride concentration in a production well of 200-to-
249 mg/l, the well will be placed on restricted use. A production well may be placed back into regular service once the chloride concentration in the well is below 200 mg/l.
Other Issues
Other issues raised and maintained by Petitioners in this case include: whether the City has provided reasonable assurance that it owns or controls the property upon which the proposed wellfield will be located; whether the Area IV Wellfield is an economically feasible option; whether the City has provided reasonable assurance that it will be able to implement the project before the expiration date of the proposed permit; whether the proposed CUP is inconsistent with the District's designation of Priority Water Resource Caution Areas; whether the proposed CUP constitutes an impermissible modification of the existing CUPs for Areas II and III; and whether the City failed to pay the appropriate permit fee.
Ownership or Control
The City has obtained an easement from the Florida East Coast Railway (FEC) to use FEC right-of-way for the City's proposed production wells. It does not yet have ownership or control of land needed for all wetland and saline monitoring
sites, or for wetland augmentation if necessary, but intends to acquire the right to use all land needed through negotiation or exercise of eminent domain.
Petitioners contend that the FEC easement is insufficient for several reasons: the easement is "without warranty or covenants of title of any kind"; it is impossible to define the precise boundaries of the easement because the easement is defined in terms of distance from the center of a railroad bed that existed in 1866 but no longer exists; and the precise location of proposed production wells is not definite.
While the easement is "without warranty or covenants of title of any kind," the evidence is that, if contested, the precise boundaries of the easement would be difficult but not necessarily impossible to define. It is reasonable to anticipate that at least Miami Corporation will contest the legality and extent of the FEC easement.
Petitioners allege that there is confusion about the location of the proposed wells because some well locations identified in the City’s permit application did not match the coordinates assigned to certain production wells on the District’s on-line database. Actually, there is no confusion regarding the location of the wells; the well locations identified in the permit application were the well sites used for modeling purposes and for review of the application.
District staff explained that the well site locations identified in the District’s database would be finalized after the wells are constructed and the exact locations have been identified using GPS technology.
Contrary to Petitioners' contentions, the District’s rules do not require that an applicant own the property where the proposed production wells or monitoring wells are to be located. The District has issued many CUPs where either the subject property or the property associated with the monitoring requirements of the permit are not owned by the applicant. Recent examples include the CUPs for Orange County Utilities and the Orlando Utilities Commission. This makes sense when the applicant has the power of eminent domain or some other credible means of obtaining necessary ownership or control, such as an option contract.
The District’s permit application form has a section that requires the applicant to identify who owns or controls the land on which the facility will be located. The District uses this information for noticing and contact information. Contrary to Petitioners' contentions, this section of the permit application form is not intended to create a substantive permitting standard requiring property ownership before a consumptive use permit can be issued.
Petitioners argue that proof of ownership or control is necessary to determine whether a drawdown from a proposed water use will adversely affect stages or vegetation on lands other than those owned, leased, or otherwise controlled by the applicant. However, the evidence was that these impacts can be assessed based on the facts of this case.
The City's need to eventually obtain ownership or legal control to exercise the rights granted by the proposed CUP may be problematic in this case and is a factor to be considered in the next two issues raised and maintained by Petitioners: whether the Area IV Wellfield is an economically feasible option; and whether the City has provided reasonable assurances that its project can become operational before the expiration date of the proposed permit. But it is not a reason to automatically deny the City's proposed CUP.
Economic Feasibility
Petitioners argue that the proposed Area IV Wellfield is too expensive and that the expense should be a factor in deciding whether it is in the public interest. But cost to the City is not a factor in determining whether to issue the CUP proposed in this case. Statutes and rules cited by Petitioners on this point do not apply to this CUP determination. See
Conclusions of Law 277-279, infra.
Implementation Before Expiration Date
Litigation of a case filed by Miami Corporation to contest the legality and extent of the City's FEC easement will add to the (cost and) time necessary to implement the project. This additional time was not specifically taken into account by the City in estimating the time it would take to implement the project.
The (cost and) time for litigation of the legality and extent of the City's FEC easement could be spared by exercising eminent domain instead. That probably would add to total the cost of eminent domain but might not add appreciably to the time necessary for acquisition of required ownership or control.
In an imprecise way, the time for eminent domain proceedings necessary to gain ownership or control of land for monitoring sites and wetland augmentation (without time for litigation of a contest over the legality and extent of the FEC easement, or for using eminent domain instead) was factored into the time estimated for implementation of the project. With this rough estimate, the evidence was that the project could be expedited and completed in 33 months from issuance of a CUP. It is possible but not probable that the project could be implemented in less than 33 months. It is possible and more probable that it will take longer than 33 months to implement
the project. In a worst case scenario, it could take as much as
59 months complete the project. But 33 months is a reasonable, if optimistic, estimate (without time for litigation of the legality and extent of the FEC easement, or for using eminent domain instead).
As found, the proposed CUP expires at the end of 2010. Given the 33-month estimate for implementation (without time for litigation of a contest over the legality and extent of the FEC easement), the CUP would have to be issued by March 2008 to be completed before expiration. Given that estimate, it would be in operation for six months before expiration. It is likely that the City will apply to renew both the existing CUP for Areas II and III and the proposed CUP for Area IV.
It appears from Petitioners' Response to the other PROs that one purpose for their arguments that the proposed CUP for Area IV cannot be implemented before its expiration is to buttress their arguments, already addressed, that there is no need for the proposed CUP for Area IV.
Priority Water Resource Caution Area Designation
As part of its water supply planning process, the District designates priority water resource caution areas. A priority water resource caution area is an area where existing and reasonably anticipated sources of water and water conservation efforts may not be adequate to supply water for all
existing legal uses and anticipated future needs and to sustain the water resources and related natural systems.
The area surrounding the Area IV Wellfield was designated as a priority water resource caution area in the District’s 2003 Water Supply Assessment and 2005 Water Supply Plan based on groundwater modeling prepared by District planning staffing using the ECF and Volusia County Regional Models.
The fact the Area IV Wellfield is located in a priority water use caution area does not mean a consumptive use permit cannot be issued for this facility. In fact, over one- third of the District is located within a priority water resource caution area, and permits continue to be issued in those areas. Rather, the essence of the designation is the recognition of a concern, based on the regional models, that the proposed consumptive use of water might violate the wetland and lake constraints and that water resources other than fresh groundwater will be needed to supply the expected need for water in the area and in the District over the next 20 years. That does not mean that no additional groundwater withdrawals should be permitted in a designated area. Rather, it means that other resources should be developed and used along with whatever remaining additional fresh groundwater can be permitted. It is not an independent reason, apart from the permitting criteria, to deny the City's application.
Impermissible Modification of Existing CUP
Petitioners contend that the proposed CUP for Area IV includes an impermissible modification of the existing CUP for Areas II and III because “Other Condition” 5 limits average annual withdrawals from the Area II, III, and IV Wellfields, combined, to 5.79 mgd in 2009 and 6.01 mgd in 2010. (As indicated, the limitations would have to be reduced to no more than 5.2 mgd based on the more reasonable projected need.) However, the City’s current CUP for the Area II and III Wellfields expires in February 2008, which is before the Area IV Wellfield would become operational, so that "Other Condition" 5 will have no practical effect on the existing CUP for Areas II and III. In essence, "Other Condition" 5 serves to advise the City that it should not view the allocation for the Area IV Wellfield in addition to the City’s existing allocations for the Area II and Area III Wellfields and that any renewal of the existing CUP for Areas II and III will have to take the Area IV allocation into account.
Appropriate Permit Fee
Petitioners have alleged that the City has not paid the correct permit processing fee. In March 2001, the City paid the District $200 when it submitted its initial permit application to modify its existing CUP. In May 2005, the City paid the District an additional $800 when it amended its
application and withdrew its request to modify its existing permit. All required permit processing fees have been paid for this CUP application 99052.
Miscellaneous
As to other issues raised by Petitioners in the case, the evidence did not suggest any danger of flooding, any proposed use of water reserved by rule for other uses, any effect on any established minimum flows or levels, or inadequate notice.
Standing
As found, Miami Corporation owns property immediately adjacent to the proposed Area IV Wellfield, and Ms. Clark owns property a little more than a mile away. Both alleged and attempted to prove that SAS drawdown from the proposed CUP would degrade wetlands on their property and interfere with their legal use of groundwater, and that saline intrusion from the proposed CUP would degrade the water quality of the UFAS resource which they use for potable water.
As found, Petitioners did not prove those allegations; however, the evidence was that both Petitioners have substantial interests (the quality of water in the aquifer from which their wells withdraw water and wetlands on their property) that would be affected by the proposed CUP at least to some extent.
CONCLUSIONS OF LAW
This is a de novo proceeding intended to formulate final agency action. Dept of Transp. v. J.W.C., Inc., 396
So. 2d 778, 786-87 (Fla. 1st DCA 1981). The burden of proof in a permitting hearing falls upon the applicant to prove entitlement by a preponderance of the evidence. J.W.C., 396 So. 2d at 788. To prove entitlement, the applicant must provide reasonable assurance through presentation of credible evidence of entitlement to the CUP. Id. at 789; Lake Brooklyn Civic Ass’n v. St. Johns River Water Mgmt. Dist., DOAH Case No. 92- 5017, 1993 Fla. ENV LEXIS 118 (FLWAC Sept. 30, 1993), 1993 Fla.
ENV LEXIS 93 (SJRWMD Jul. 14, 1993), 1993 Fla. Div. Adm. Hear.
LEXIS 5210 (DOAH Jun. 4, 1993). The term “reasonable assurance” means a “substantial likelihood that the project can be successfully implemented.” Metropolitan Dade County v. Coscan, Fla., Inc., 609 So. 2d 644 (Fla. 3d DCA 1992). Thus, the applicant's burden is one of reasonable assurances, not absolute guarantees. Lake Brooklyn Civic Ass’n, supra.
J.W.C. also refers to a procedural option of requiring the applicant to going forward with evidence initially to prove a prima facie case of entitlement, and then shifting of the burden to the petitioner to present contrary evidence of equivalent quality. J.W.C., 396 So. 2d at 789. In this case, the procedural option was not used because it was anticipated
that both the City and Petitioners would present competent, substantial evidence of equivalent quality in support of their positions, which is what occurred.
The Permitting Criteria
In order for the City to meet the burden of proof described above, it was required to demonstrate compliance with the criteria included in Section 373.223, Florida Statutes.6 This statutory provision establishes a three-prong test requiring that a proposed use of water: (1) is a reasonable- beneficial use of water; (2) will not interfere with any presently existing legal use of water; and (3) is consistent with the public interest. The District’s Conditions for Issuance of Permits, which implement the three-prong test, are contained in Florida Administrative Code Rule 40C-2.301.7 The Criteria for Evaluation of Permits are found in Part II, Applicant’s Handbook, Consumptive Uses of Water (A.H.), which has been adopted by reference in Rule 40C-2.101(1).
In many cases, the criteria in these sources are redundant or circular, making it difficult to apply them in a concise manner. As indicated in the Findings of Fact, several findings of fact pertain to several different criteria.
Rule 40C-2.301(2)-(4) provides in pertinent part as follows:
(2) To obtain a consumptive use permit for a use which will commence after the effective date of implementation, the applicant must establish that the proposed use of water:
Is a reasonable beneficial use; and
Will not interfere with any presently existing legal use of water; and
Is consistent with the public interest.
For purposes of subsection (2)(b) above, “presently existing legal use of water” shall mean those legal uses which exist at the time of receipt of the application for the consumptive use permit.
The following criteria must be met in order for a use to be considered reasonable-beneficial:
The use must be in such quantity as is necessary for economic and efficient utilization.
The use must be for a purpose that is both reasonable and consistent with the public interest.
The source of the water must be capable of producing the requested amounts of water.
The environmental or economic harm caused by the consumptive use must be reduced to an acceptable amount.
All available water conservation measures must be implemented unless the applicant demonstrates that implementation is not economically, environmentally or technologically feasible. Satisfaction of this criterion may be demonstrated by implementation of an approved water conservation plan as required in Section
12.0., Applicant's Handbook: Consumptive Uses of Water.
When reclaimed water is readily available it must be used in place of higher quality water sources unless the applicant demonstrates that its use is either not economically, environmentally, or technologically feasible.
For all uses except food preparation and direct human consumption, the lowest acceptable quality water source, including reclaimed water or surface water (which includes stormwater), must be utilized for each consumptive use. To use a higher quality water source an applicant must demonstrate that the use of all lower quality water sources will not be economically, environmentally or technologically feasible. If the applicant demonstrates that use of a lower quality water source would result in adverse environmental impacts that outweigh water savings, a higher quality source may be utilized.
The consumptive use shall not cause significant saline water intrusion or further aggravate currently existing saline water intrusion problems.
The consumptive use shall not cause or contribute to flood damage.
The water quality of the source of the water shall not be seriously harmed by the consumptive use.
The consumptive use shall not cause or contribute to a violation of state water quality standards in receiving waters of the state as set forth in Chapters 62-3, 62-4, 62-302, 62-520, and 62-550, F.A.C., including any anti-degradation provisions of Sections 62-4.242(1)(a) and (b), 62-4.242(2) and (3), and 62-302.300, F.A.C., and any
special standards for Outstanding National Waters set forth in Sections 62-4.242(2) and (3), F.A.C. A valid permit issued pursuant to Chapters 62-660 or 62-670, F.A.C., or Section 62-4.240, F.A.C., or a permit issued pursuant to Chapters 40C-4, 40C-40, 40C-42, or 40C-44, F.A.C., which authorizes the discharge associated with the consumptive use shall establish that this criterion has been met, provided the applicant is in compliance with the water quality conditions of that permit.
The consumptive use must not cause water levels or flows to fall below the minimum limits set forth in Chapter 40C-8, F.A.C.
In addition to the foregoing, Rule 40C-2.301(5)(a) highlights certain reasons for denial of a CUP application, providing:
(5)(a) A proposed consumptive use does not meet the criteria for the issuance of a permit set forth in subsection 40C-2.301(2), F.A.C., if such proposed water use will:
Significantly induce saline water encroachment; or
Cause the water table or surface water level to be lowered so that stages or vegetation will be adversely and significantly affected on lands other than those owned, leased, or otherwise controlled by the applicant; or
Cause the water table level or aquifer potentiometric surface level to be lowered so that significant and adverse impacts will affect existing legal users; or
Require the use of water which pursuant to Section 373.223(3), Florida Statutes, and Rule 40C-2.301(6), F.A.C., the Board has
reserved from use by permit; or
Cause the rate of flow of a surface watercourse to be lowered below any minimum flow which has been established in Chapter 40C-8, F.A.C.; or
Cause the level of a water table aquifer, the potentiometric surface level of an aquifer, or the water level of a surface water to be lowered below a minimum level which has been established in Chapter 40C-8, F.A.C.
These criteria are also found in A.H. Section 9.4.
Whether the Proposed Use is a Reasonable-Beneficial Use (i) Rule 40C-2.301(4)(a); A.H. §§ 10.3(a) and 12.0 -
Whether the proposed quantity is necessary for economic and efficient utilization
Under Rule 40C-2.301(4)(a) and A.H. Section 10.3(a), the District considers: (1) whether there has been a demonstration of need for the water requested; and (2) whether the requested amount of water will be used efficiently.
Demonstration of Need
A.H. Section 12.2 contains the need and use standards applicable to public supply type uses:
Public Supply-Type Uses
An amount of water required for reasonable- beneficial uses must be demonstrated by the applicant. For public water supply systems, this amount is calculated based upon the projected requirements of the population as to its industrial, commercial and other users supplied by the permittee. Population requirements are calculated by multiplying the 10-year projected population for an
authorized service area by calculated or estimated per capita daily water use.
Projected population shall be determined using the methods and data sources specified in Subsection 12.4.1; use shall be calculated or estimated as prescribed in Subsection 12.4.2.[8] Other methods for determining water requirements may be used as approved by staff.
If the applicant's requested quantity exceeds the amount of water required for reasonable-beneficial uses as calculated pursuant to this Section, the staff will recommend a projected requirement based on its analysis of population projections for the service area and historical or design per capita use of water.
Reasonable-beneficial requirement for the public supply-type use is the highest allocation which staff can recommend. If all other criteria are satisfied, staff will recommend this amount as the annual allocation.
Population Projections
A ten-year population growth should be projected using accepted projection techniques. The following sources of growth projection are based on accepted techniques and may be used:
The appropriate local government adopted comprehensive plan
Detailed DER Population Studies 201/208 Planning Studies
University of Florida, Bureau of Economic and Business Research Population Data
Regional Planning Council Data Special population studies (special
population studies should only be used if the sources listed above are unavailable)
The District shall consider evidence submitted in the application which indicates appropriate adjustments to the population base due to changes in the number of residents in the service area actually served by the utility. Evidence on the location of large unique users not related to population, such as golf courses and industrial plants will also be considered.
Per Capita Daily Water Use
Historical average per capita water use will generally be acceptable as evidence of total daily water use. Historical average daily per capita daily water use is calculated either by dividing average day water withdrawals for the current pumpage period by the permanent population for the same period of time or by determining the per capita daily water use for the five most recent years. The greatest or most accurate per capita use derived from either of the two methods may then be used in projecting future water use. In some cases the historical demand patterns will not be appropriate for projection purposes. This may occur, for instance, when there are current large users whose growth is not related to population or when future development may take on characteristics very different from those of present development. In such cases alternative per capita estimates may be appropriate and should be used, accompanied by appropriate documentation.
If the historical usage is greater than 150 per capita day (GPCD) the District shall request specific information from the applicant which explains the high per capita use.
If no data or historical use of water exist, a design per capita use acceptable to the District staff may be used. For any proposed development the design per capita use must be explained.
There is nothing specific in A.H. Section 12.2.1 that authorizes the City to use the source of growth projections it used in this case. The only possible justification for the City's proposed source of growth projections is the statement in
A.H. Section 12.2: "Other methods for determining water requirements may be used as approved by staff." Use of that justification begs the question whether staff's approval of those projections was reasonable.
As found, it was not reasonable for the District's staff to approve the City's calculation of projected population at the end of 2010; rather, the lower calculation by Petitioners' expert witness was reasonable.
As for per capita daily water use, the City and the District attempt to justify using an alternative calculation method based on 11 years of experience instead of five because the past five years were wetter than average, while the previous
11 years cover a good mix of wet and dry years. However, as found, per capita water use by the City's customers no longer varies by much between wet and dry years, and the City's alternative calculation overlooks the impact of water
conservation measures, especially conservation rates that were not implemented until 1998.
The City and District also take the position that the value selected by the City for its water demand projections is appropriate because it is less than 150 gallons per person per day, which they call the District’s "per capita water use standard." Actually, under A.H. Section 12.2.2, 150 is not a "standard" but rather a threshold above which additional explanation would be required. In other words, it does not automatically sanction the use of any lower number.
The City and District also take the position that the
100.35 gallons per person per day is acceptable because the City's comprehensive plan includes a level of service standard of 100. But there is nothing in A.H. Section 12.2.2 that adopts the comprehensive plan level of service standard as a presumptively reasonable per capita daily water use standard.
As found, the appropriate calculations of projected population and per capita water use at the end of 2010 result in a demand for no more than 5.2 mgd.
Contrary to Petitioners' contention, the District’s rules do not require the City to meet either its existing or future demands from water supplied by the City of Cocoa before it can develop its own supplemental source. There is nothing in
A.H. Section 12.2 implying that the amount of water the City can
buy from Cocoa under contract, even the take-or-pay portion of the contract, should be counted as part of "the applicant's requested quantity" to be compared to the amount of water required for reasonable-beneficial uses. Assuming that the other permitting criteria are met, the City may receive a CUP to supply its reasonable-beneficial uses without reference to Cocoa water. If such a CUP is granted to the City of Titusville, Cocoa's reasonable-beneficial use would decline accordingly.
The City's existing permit for the Area II and III Wellfields expires in February 2008, before the City would begin pumping water from Area IV if authorized. If withdrawals from Areas II and III were not considered part of "the applicant's requested quantity," there clearly would be a need for 2.75 mgd from Area IV to meet the projected demand in 2009 and 2010. However, the proposed CUP recognizes that the existing permit for Areas II and III likely will be renewed at some level, and all parties accept that the safe and reliable yield for Areas II and III should be counted as part of "the applicant's requested quantity" for purposes of determining whether the proposed Area IV allocation is a "reasonable beneficial use." For that reason, “Other Condition” 5 of the proposed CUP for Area IV requires that if the City receives water from the City of Cocoa for potable use, then the City's combined allocation for Areas II, III, and IV shall be reduced in an amount equivalent to the
quantity provided to the City of Titusville by the City of Cocoa. The parties disagree as to the amount of the safe and reliable yield for Areas II and III. As found, the safe and reliable yield from Areas II and III is approximately 4.5 mgd.
The City and the District take the position that the District encourages water supply applicants to build redundancy into their water supply systems so they have the flexibility to rotate water use among several different facilities. But there is nothing in the District's rules about building redundancy, or giving any guidance as to how much redundancy should be encouraged. To the contrary, A.H. Section 12.2 is reasonably clear that "the applicant's requested quantity" may not exceed the amount of water required for reasonable-beneficial uses, as calculated under A.H. Section 12.2. As found, the need as calculated under that rule for purposes of the pending application does not exceed 0.75 mgd.
The City attempts to use the Florida Public Service Commission (PSC) Final Order granting Miami Corporation’s wholly owned subsidiary, Farmton Water, an original water certificate to justify granting its application in this case "regardless of whether the City’s existing water demands are projected to increase during the next 4 years." The District does not appear to join the City in this position. Indeed, the PSC's Final Order plays no part in deciding whether the City's "requested
quantity exceeds the amount of water required for reasonable- beneficial uses" as calculated in A.H. Section 12.2.1.
(b) Efficient Use
The evidence was clear and not seriously challenged that the City is efficient in treating and distributing potable water to its customers--the City delivers to its customers all but approximately 6.5 percent of the water it pumps from its Area II and III Wellfields. The ultimate use of water for human consumption (i.e., for drinking) is inherently efficient. With the conservation measures the City has imposed, including conservation rates, as little as reasonably possible of the potable water used by customers for other purposes is wasted. This makes the use economic and efficient for purposes of determining whether it is a reasonable-beneficial use.
Petitioners contend that the City's proposed use of water is not economic and efficient because there are ways to obtain the water that would be less expensive for the City and its customers. Regardless whether Petitioners' contention is factually correct, the cost to the City and its customers is not relevant to a determination whether a use is economic and efficient under A.H. 12.2.2.
The legislative history of the Florida Water Resources Act demonstrates the Legislature did not intend the type of economic comparisons urged by the Petitioners as a
component of consumptive use permitting. The Florida Water Resources Act was based primarily on "A Model Water Code" (Maloney et al., 1972). Because the Florida Water Resources Act closely tracks the Model Water Code, the Code and its accompanying commentary can be utilized to ascertain the meaning and intent behind provisions of Chapter 373. See Sheffield
Briggs Steel Products, Inc. v. Ace Concrete Co., 63 So. 2d 924, 926 (Fla. 1953). The commentary to Chapter 2 of the Model Water Code, “Regulation of Consumptive Uses,” explains the meaning of economic efficiency in the context of the reasonable-beneficial
use standard:
The reasonable-beneficial use standard
of the Model Water Code is an attempt to combine the best features of the reasonable use and beneficial use rules. First of all, the quantity of water used must be efficient with respect to the use itself. This is basically a test of economic efficiency with water being regarded as a raw material.
Thus, if a particular crop can be grown properly with five acre-feet of water per year, it would be wasteful to use ten acre- feet, since no increase in value is obtained from the increased use of water. On the other hand, if it is technically feasible to use 5,000 gallons per day in an operation, but total costs can be reduced substantially by the use of 10,000 gallons per day, the reduction in overall cost may justify the increased use of water. It should be noted that this part of the reasonable-beneficial use test allows only that quantity of water to be used as is necessary for an economically efficient operation. The value of the use itself in relation to other uses is not considered initially. In an
agricultural operation, for example, the test does not require a farmer to raise one crop because it takes less water per dollar of crop value than another crop. Nor does the test require that a permit be denied to an agricultural operation because the ultimate dollar value produced per gallon of water used is greater for industrial operations than agricultural uses . . . .
The reasonable-beneficial use standard also requires that the water (regardless of amount) be used “for a purpose . . . which is both reasonable and consistent with the public interest.” The requirement means that the purpose must be reasonable in relation to other uses. This criterion does not require that the use be the most economical use of water possible but only that the use not be detrimental to other users or totally inconsistent with the character of the watercourse from which the supply is taken.
"A Model Water Code", 171 (Maloney, et al., 1972). The commentary does not suggest any legislative intent that the reasonable-beneficial test requires applicants to demonstrate they are pursuing the lowest cost option for the providing water.
When the Legislature specifically intends an administrative agency to perform the type of comparative economic analysis urged by the Petitioners, it explicitly defines such a requirement in the legislation. For example, in the context of administrative rulemaking, Section 120.54(1)(d), Florida Statutes, requires that:
In adopting rules, all agencies must, among the alternative approaches to any regulatory objective and to the extent allowed by law, choose the alternative that does not impose
regulatory costs on the regulated person, county, or city which could be reduced by the adoption of less costly alternatives that substantially accomplish the statutory objectives.
Additionally, Section 120.541, Florida Statutes, requires that agencies consider proposals for a lower-cost regulatory alternative to a proposed rule that are submitted by a substantially affected person, and that agencies prepare a statement of estimated regulatory costs for the proposed rule.
By contrast, no such specific requirement of a comparative economic analysis exists in the statutory or regulatory criteria for the issuance of a consumptive use permit by a water management district; thus, there is no statutory basis for requiring the City to perform any comparative economic analysis as a prerequisite to obtaining the requested CUP, and the City has provided reasonable assurance that the allocations demonstrated to be needed will be used economically and efficiently.
(ii) Fla. Admin. Code R. 40C-2.301(4)(b); § 10.3(b), A.H.
- The use is for a purpose that is reasonable and consistent with the public interest
In compliance with Rule 40C-2.301(4)(b), and A.H. Section 10.3(b), the City has provided reasonable assurance that the proposed use is for a purpose that is reasonable and consistent with the public interest. The requested allocation of 2.75 mgd of groundwater is largely for household and
commercial uses that are considered to be purposes that are both reasonable and consistent with the public interest. The possible use of up to 0.18 mgd of groundwater for wetland hydration and aquifer recharge is both reasonable and consistent with the public interest because this use of water serves to avoid impacts to wetlands that may occur from the development of the proposed Floridan wellfield. This use of surficial aquifer groundwater makes it possible to withdraw higher quality groundwater from the Floridan aquifer for household and commercial uses.
(iii) Fla. Admin. Code R. 40C-2.301(4)(c); § 10.3(c), A.H.
- The source is capable of producing the requested amount of water
In compliance with Rule 40C-2.301(4)(c), and A.H. Section 10.3(c), the City has provided reasonable assurance that the sources of water are capable of producing the requested amounts of water. First, the long-term constant rate pump tests performed as part of the hydrogeologic investigation of the Area IV Wellfield produced evidence that the freshwater lens in the Upper Floridan aquifer can be utilized for the quantity of water the City requested. During these tests, water quality did not degrade even at pumping rates that exceeded what would be approved as part of the proposed permit. Second, the City’s MODFLOW simulation provided reasonable assurance that the requested allocations could be provided without excessive
drawdown. Third, the City’s SEAWAT simulations provided reasonable assurance that the requested allocations could be provided without excessive changes to water quality and specifically chlorides. A fortiori, reasonable assurance for UFAS withdrawals of 0.75 mgd was provided. As to the surficial aquifer system, the aquifer performance tests performed provided reasonable assurance that this aquifer is capable of producing the 0.18 mgd of water via the surficial aquifer extraction wells for any needed wetland hydration.
(iv) Fla. Admin Code R. 40C-2.301(4)(d) and 40C- 2.301(5)(a)2.; §§ 9.4.3., 9.4.1(b), and § 10.3(d),
A.H. - The environmental or economic harm is reduced to an acceptable amount
Assuming the drawdown predicted by SDI’s March 2006 MODFLOW model, the unrebutted testimony of not only the City’s and District’s experts, but also Petitioners’ own environmental expert, was that there would be no environmental harm on or in the vicinity of the Area IV Wellfield as a result of the proposed consumptive use. A fortiori, reasonable assurance for UFAS withdrawals of 0.75 mgd was provided.
As found, reasonable assurance was given that the City’s proposed wetland monitoring program would detect any adverse change occurring in the wetlands and other waters surrounding the Area IV Wellfield and that the City’s avoidance and minimization plan in the proposed CUP would be capable of
fully mitigating any unanticipated adverse impacts to wetlands and other waters detected.
As found, reasonable assurance also was provided that neither water stages nor vegetation on lands not owned, leased or otherwise controlled by the City would be adversely and significantly affected by the proposed CUP, which meets the criteria in Rule 40C-2.301(5)(a)2. and A.H. Section 9.4.1(b). A fortiori, reasonable assurance for UFAS withdrawals of 0.75 mgd was provided.
Pursuant to A.H. Section 10.3(d), the District looks to the criteria in A.H. Sections 9.4.3 and 9.4.4 in reviewing whether an applicant has provided reasonable assurance that the environmental or economic harm has been reduced to an acceptable amount. A.H. Section 9.4.4, regarding interference with existing legal uses, is discussed elsewhere, and the proposed use meets that criteria. A.H. Section 9.4.3 also serves as guidance regarding compliance with A.H. Section 9.4.1(b), which addresses affects on lands not controlled by the applicant. In order to address the environmental requirements of Rule 40C- 2.301(4)(d), A.H. Section 10.3(d), Rule 40C-2.301(5)(a)(2), and
A.H. Sections 9.4.1(b) and 9.4.3, the City performed an environmental assessment of Petitioners’ properties, including the Area IV Wellfield site. The evaluation included consideration of SDI’s MODFLOW model drawdown, topography,
wetland and upland vegetation, current land uses, soil conditions, and listed animals and plant species utilization. The evidence provided reasonable assurance that the City’s proposed use would not cause harm to wetland or upland vegetation, listed plants or wildlife, or existing land uses. Additionally, the City will implement an environmental monitoring plan that would be able to detect changes to wetland hydrology and vegetation due to groundwater withdrawals before those changes become adverse, although adverse impacts are not anticipated. Should unanticipated impacts occur, the City will be required to implement its avoidance and minimization plan to rehydrate an impacted wetland. Such rehydration has been shown to be effective. Consequently, the City has provided reasonable assurance that economic and environmental harm has been reduced to an acceptable amount, meeting the criteria in Rules 40C- 2.301(4)(d) and A.H. Section 10.3(d), and that the proposed permit would not allow withdrawals of water that would cause an unmitigated adverse environmental impact on an adjacent land use which existed at the time of the City’s permit application, in accordance with A.H. Section 9.4.3.
Therefore, the City has provided reasonable assurance that the proposed use would comply with Rule 40C-2.301(4)(d) and
A.H. Sections 9.4.3, 9.4.4, and 10.3(d), and that the reasons for denial in Rule 40C-2.301(5)(a)2. and A.H. Section 9.4.1(b),
have not been established. A fortiori, reasonable assurance for UFAS withdrawals of 0.75 mgd was provided.
(v) Fla. Admin. Code R. 40C-2.301(4)(e); § 10.3(e), A.H -
All available conservation measures will be implemented unless shown not to be economically, environmentally or technologically feasible
Rule 40C-2.301(4)(e) and A.H. Section 10.3(e) require an applicant to implement all available water conservation measures unless it demonstrates that implementation is not economically, environmentally, or technologically feasible. Satisfaction of this criterion may be demonstrated by implementation of an approved water conservation plan as required under A.H. Sections 10.3 and 12.0 and Rule 40C- 2.301(4)(e). A.H. Section 12.2.5 sets forth water conservation actions for public supply-type applicants like the City which, if implemented, are deemed to meet the water conservation requirements of Rules 40C-2.301(4)(e) and 10.3(e). The City has demonstrated that it has implemented a water conservation plan meeting the provision of Section 12.2.5, A.H. Therefore, the City has provided reasonable assurance that its proposed use complies with Florida Administrative Code Rule 40C-2.301(4)(e) and Section 10.3(e), A.H.
(vi) Fla. Admin. Code R. 40C-2.301(4)(f); § 10.3(f), A.H.
Readily available reclaimed water will be used unless shown not to be economically, environmentally or technologically feasible
For that part of the City’s allocation that is not associated with direct human consumption or food preparation, Florida Administrative Code Rule 40C-2.301(4)(f) and Section 10.3(f), A.H., require that readily available reclaimed water be used in the place of higher quality water, unless the applicant demonstrates that it is not economically, environmentally, or technologically feasible. The City will use 67 percent of available wastewater flows for irrigation, with the remainder going to a wetland system during wet weather periods when irrigation demand is low. The City has demonstrated that it is using reclaimed water to the extent it is economically, environmentally and technologically feasible. Therefore, the City has provided reasonable assurances that its proposed use complies with Florida Administrative Code Rule 40C-2.301(4)(f) and Section 10.3(f), A.H.
(vii) Fla. Admin. Code R. 40C-2.301(4)(g); § 10.3(g), A.H.
The lowest acceptable quality water source will be utilized
In compliance with Florida Administrative Code Rule 40C-2.301(4)(g) and Section 10.3(g), A.H., the City has provided reasonable assurance that the lowest acceptable quality water source is being utilized for the proposed use. The majority of
water use under the proposed permit will be for direct human consumption or food preparation. Section 10.3(g), A.H., does not require the use of lower quality sources for direct human consumption or human food preparation unless higher quality sources are unavailable to meet projected demands. See also Marion County v. Greene and SJRWMD, DOAH Case No. 06-2464, SJRWMD Final Order Mar. 13, 2007, at www.doah.state.fl.us, 2007 Fla. Div. Adm. Hear. LEXIS 17 (DOAH Jan. 9, 2007). For uses other than human consumption and food preparation, the City is required to use the lowest acceptable quality water source unless it demonstrates that the use of a lower quality water source would not be economically, environmentally, or technologically feasible. See § 10.3(g), A.H. The applicant is proposing to use the lowest acceptable quality water source available, reclaimed water, for most of these uses and has aggressively implemented reuse of reclaimed water, and continues to expand its reuse system. In addition to reclaimed water, District staff evaluated whether additional lower quality sources are available and feasible for use within the City’s service area. It is not feasible to utilize additional lower quality sources of water for the duration of the proposed permit. If more use of lower quality sources of water becomes available, the allocation can be adjusted if necessary during the permit renewal process.
(viii) Fla. Admin. Code R. 40C-2.301(4)(h); Fla. Admin.
Code R. 40C-2.301(5)(a)1.; § 9.4.2, A.H. - The
proposed use will not cause significant saline water intrusion or further aggravate existing saline water intrusion problems
In compliance with Florida Administrative Code Rule 40C-2.301(4)(h) and Section 10.3(h), A.H., the City has provided reasonable assurance that the proposed CUP for the Area IV Wellfield will not cause significant saline water intrusion or further aggravate currently existing saline water intrusion problems. In compliance with Florida Administrative Code Rule 40C-2.301(5)(a)1. and Section 9.4.2, A.H., the City provided reasonable assurance that the proposed use will not induce significant saline water intrusion to such an extent as to be inconsistent with the public interest. A fortiori, reasonable assurance for UFAS withdrawals of 0.75 mgd was provided.
First, the APT conducted as part of the hydrogeologic investigation give some indication of the potential for salt water intrusion. During those pump tests, water quality did not degrade even at pumping rates that exceeded what would be approved as part of the proposed permit (albeit with only one well pumping versus the entire Area IV Wellfield). Second, the City’s SEAWAT simulations provided reasonable assurance that the requested allocation could be provided from the Area IV Wellfield without excessive changes to water quality and specifically chlorides for at least 15 years. A fortiori,
reasonable assurance for UFAS withdrawals of 0.75 mgd was provided. Third, the proposed permit expiration of December 31, 2010, and the anticipated pumping of the production wells for only two years during the term of the proposed permit make it unlikely that saltwater intrusion will occur during the period of the proposed permit, much less one for just .75 mgd. Fourth, the proposed permit conditions within the TSR include saline water monitoring requirements that will allow detection of the beginning of water quality degradation or saline water intrusion either from upcoming or lateral intrusion. Fifth, “Other Condition” 25 is proposed as a “safety net” should unanticipated saltwater intrusion occur. If any production well shows a concentration of 250 mg/l chlorides, this proposed condition would prohibit further use of the well until the chloride concentration drops. A production well may be placed back into regular service once the chloride concentration in the well is below 200 mg/l. Lastly, the proposed use associated with the four surficial aquifer extraction wells is so minimal that it will not cause saline water intrusion.
(ix) Fla. Admin. Code R. 40C-2.301(4)(i); § 10.3(i), A.H.
The proposed use will not cause or contribute to flood damage
The City has provided reasonable assurance that the proposed use of the production wells and surficial aquifer wells will not cause or contribute to flood damage, in compliance with
Florida Administrative Code Rule 40C-2.301(4)(i), and Section 10.3(i), A.H. (There also was no evidence to suggest that pumping 0.75 mgd would cause or contribute to flooding.)
(x) Fla. Admin. Code R. 40C-2.301(4)(j); § 10.3(j), A.H. -
The quality of the water source will not be seriously harmed
In compliance with Florida Administrative Code Rule 40C-2.301(4)(j) and Section 10.3(j), A.H., the City has provided reasonable assurance, for the same reasons listed in the discussion of saline water intrusion above, that the quality of the water sources would not be seriously harmed by the proposed consumptive use. A fortiori, reasonable assurance for UFAS withdrawals of 0.75 mgd was provided.
(xi) Fla. Admin. Code R. 40C-2.301(4)(k); § 10.3(k), A.H.
The proposed use will not cause or contribute to a violation of state water quality standards in receiving waters of the state
Section 10.3(k), A.H., provides that:
The consumptive use shall not cause or contribute to a violation of state water quality standards in receiving waters of the state, as set forth in chapters 62-3, 62-4, 62-302, 62-520, and 62-550, F.A.C.,
including any anti-degradation provisions of sections 62-4.242(1)(a) and (b), 62-4.242(2) and (3), and 62-302.300, F.A.C., and any special standards for Outstanding National Resource Waters set forth in sections 62- 4.242(2) and (3), F.A.C. A valid permit issued pursuant to chapters 62-660 or 62- 670, F.A.C., or section 62-4.240, F.A.C., or
a permit issued pursuant to chapters 40C-4, 40C-40, 40C-42, or 40C-44, F.A.C., shall
establish that this criterion has been met,
provided the applicant is in compliance with the water quality conditions of that permit.
The first issue raised by this criterion is whether the City’s discharge of wastewater will cause or contribute to a violation of state water quality standards in surface or groundwater; and the second issue is whether the operation of the proposed surficial aquifer wells for direct wetland hydration will cause or contribute to a violation of state water quality standards in the wetland or underlying SAS.
The unrebutted evidence established that the City has a valid DEP permit for its wastewater discharge, which will not cause or contribute to a violation of state water quality standards in surface or groundwater. Therefore, the City’s discharge of wastewater meets Section 10.3(k), A.H. The evidence also established that the operation of the proposed surficial aquifer wells for direct wetland hydration will not cause or contribute to a violation of state water quality standards in the wetland or underlying SAS. Based on the above, the City has provided reasonable assurance that the proposed use complies with Rule 40C-2.301(4)(k), and Section 10.3(k), A.H. A fortiori, reasonable assurance for UFAS withdrawals of 0.75 mgd was provided.
Consistency with the Public Interest - Fla. Admin. Code R.
40C-2.301(2)(c); § 9.3, A.H.
Pursuant to Section 9.3, A.H., “public interest”
means:
. . . those rights and claims on behalf of people in general. In determining the public interest in consumptive use permitting decisions, the Board will consider whether an existing or proposed use is beneficial or detrimental to the overall collective well-being of the people or to the water resources of the area, the District and the State.
In this inquiry, the District considers whether the use is for a legitimate purpose, whether the use meets the reasonable- beneficial use requirements and whether any of the reasons for denial of a permit have been established.
As found, the proposed allocation of 2.75 mgd of groundwater is more than needed, but the intended largely household and commercial uses are considered to be purposes both reasonable and consistent with the public interest. The use of up to 0.18 mgd of groundwater as necessary for wetland hydration and aquifer recharge is both reasonable and consistent with the public interest because this use of water serves to avoid impacts to wetlands that may occur from the development of the proposed Floridan aquifer wellfield.
The City provided reasonable assurance that the proposed use will not interfere with any presently existing
legal use of water, and no reasons for recommendation of denial of a permit have been established in this case. The proposed consumptive use of water has been shown to be beneficial and not detrimental to the collective well-being of the public and water resources. Therefore, the City’s consumptive uses of water are consistent with the public interest.
Petitioners contend that, in determining whether the use is reasonable and consistent with the public interest, the District must consider the potential financial investment that the community is making in the proposed wellfield and the fact that the permit would, if issued, expire at the end of 2010. Petitioners imply that the City should not make such a financial investment because of the relatively short duration of the proposed permit.
The District does not consider such financial interests when determining whether the proposed use is reasonable and consistent with the public interest. See Osceola County v. SJRWMD and South Brevard Water Auth., DOAH Case No. 91-1779, 1992 Fla. ENV LEXIS 83 (SJRWMD Jun. 10, 1992), 1992 Fla. Div. Adm. Hear. LEXIS 5960 (DOAH Mar. 12, 1992). As noted by the District’s Governing Board in Osceola County v. SJRWMD, “Cost to the consumer is not a substantive factor considered under District rules in determining whether a proposed water use is reasonable-beneficial or in the public interest, but may be
relevant in certain factual instances, . . . such as when an applicant contends that water conservation measures, water reuse
or use of the lowest acceptable quality water source otherwise required are not economically feasible. See paragraphs 40C- 2.301(4)(e)(f), and (g), F.A.C.” (Emphasis added).
Thus, there are limited circumstances when the District examines economic feasibility. In Florida Administrative Code Rule 40C-2.301(4)(e), the applicant must establish that all available conservation measures be implemented unless shown not to be economically, environmentally or technologically feasible. In Florida Administrative Code Rule 40C-2.301(4)(f), the applicant must use readily available reclaimed water unless shown that it is not economically, environmentally or technologically feasible. In Florida Administrative Code Rule 40C-2.301(4)(g), for uses other than human consumption and food preparation, the City is required to use the lowest acceptable quality water source unless it demonstrates that the use of a lower quality water source would not be economically, environmentally, or technologically feasible.
Except as noted above, nothing in Chapter 373, and nothing in a District rule or policy, requires the District to act as a financial supervisor to the applicant. Therefore, the District need not consider the financial investment of the
community in the proposed Area IV Wellfield to determine whether the proposed use is consistent with the public interest.
No Reasons for Denial
The City provided reasonable assurance that none of the reasons for recommendation of denial of a CUP application set out in Florida Administrative Code Rule 40C-2.301(5)(a), or Section 9.4, A.H., are present. To the contrary, all applicable permitting criteria have been met by the City.
(i) Fla. Admin. Code R. 40C-2.301(4)(h), 40C-2.301(5)(a)1.;
§ 9.4.1(a), A.H., § 9.4.2, A.H. - The proposed use will not induce significant saline water intrusion to such an extent as to be inconsistent with the public interest
As explained previously, the City provided reasonable assurance that the proposed use will not cause significant saline water intrusion and that the proposed use complies with Florida Administrative Code Rule 40C-2.301(4)(h). None of the reasons for recommendation of denial in Florida Administrative Code Rule 40C-2.301(5)(a)1. or Sections 9.4.1(a) and 9.4.2, A.H., were established.
(ii) Fla. Admin. Code R. 40C-2.301(5)(a)2.; §§ 9.4.1(b), A.H., 9.4.3, A.H. - The proposed use will not cause the water table or surface water level to be lowered so that stages or vegetation will be adversely and significantly affected on lands other than those owned, leased or otherwise controlled by the applicant
As explained previously, the City provided reasonable assurance that the proposed use will not cause the water table
or surface water level to be lowered so that stages or vegetation will be adversely and significantly affected on land not controlled by the applicant. A fortiori, reasonable assurance for UFAS withdrawals of 0.75 mgd was given.
Reasonable assurance was given that none of the reasons for denial in Florida Administrative Code Rule 40C-2.301(5)(a)2., or Sections 9.4.1(b) and 9.4.3., A.H., were present.
(iii) Fla. Admin. Code R. 40C-2.301(2)(b) and 40C- 2.301(5)(a)3.; §§ 9.2, A.H., 9.4.1(c), A.H., 9.4.4,
A.H. - The proposed use will not interfere with a presently existing legal use of water
The City provided reasonable assurance that the proposed use will cause a predicted drawdown in the surficial aquifer of slightly greater than 0.4 feet and minimal drawdown in the Floridan aquifer of at most 2.2 feet at the nearest active existing uses of water, and that because of the small expected drawdown there will be no impact on any existing legal use of water. The City also provided reasonable assurance that its proposed use will not interfere with any existing legal use of water existing at the time of submission of its application.
307. The City has provided reasonable assurance that the proposed use complies with Florida Administrative Code Rule 40C- 2.301(2)(b), and Section 9.2, A.H., and that none of the reasons denial in Florida Administrative Code Rule 40C-2.301(5)(a)3. and
Sections 9.4.1(c), and 9.4.4, A.H., were present. A fortiori, reasonable assurance for UFAS withdrawals of 0.75 mgd was given.
(iv) Fla. Admin. Code R. 40C-2.301(5)(a)4.; §§ 9.4.1(d), A.H., 9.4.5, A.H. - The proposed use will not use water reserved from use
The District presented unrebutted evidence that, due to the drawdown predicted for the proposed withdrawals and due to the distance between the site of the withdrawals and the one location within the District in Alachua County, where water has been reserved from use by rule, the proposed use will not require the use of water which has been reserved from use by rule. A fortiori, reasonable assurance for UFAS withdrawals of
0.75 mgd was given.
None of the reasons for recommendation of denial in Florida Administrative Code Rule 40C-2.301(5)(a)4., and Sections 9.4.1(d) and 9.4.5, A.H., regarding reservations of water were present.
(v) Fla. Admin. Code R. 40C-2.301(4)(l) and 40C- 2.301(5)(a)5. & 6.; §§ 9.4.1.(e), A.H., 9.4.1.(f),
A.H., 9.4.6., A.H., 9.4.7, A.H. - The proposed use will not cause surface water or aquifer levels, or surface water flow, to fall below the minimum limits set forth in Chapter 40C-8.
The District presented unrebutted evidence that, due to the drawdown predicted for the proposed withdrawals and due to the large distance between the site of the withdrawals and the closest water bodies where established minimum flows or
levels exist, the proposed use will not cause a minimum flow for a surface watercourse or a minimum level for an aquifer or a surface water body, established pursuant to Florida Administrative Code Chapter 40C-8,, to fall below the established minimum flow or level. A fortiori, reasonable assurance for UFAS withdrawals of 0.75 mgd was given.
Reasonable assurance has been provided that the proposed use complies with Florida Administrative Code Rule 40C- 2.301(4)(l), and that none of the reasons for recommendation of denial in Florida Administrative Code Rules 40C-2.301(5)(a)5. and 6. and Sections 9.4.1(e) and (f), and 9.4.6, and 9.4.7, A.H., were established.
Adequacy of the Notices Provided
Third-party noticing is required by Sections 120.60, 373.116, and 373.229, Florida Statutes.
Section 120.60 provides in pertinent part that:
(3) Each applicant shall be given written notice either personally or by mail that the agency intends to grant or deny, or has granted or denied, the application for license. The notice must state with particularity the grounds or basis for the issuance or denial of the license, except when issuance is a ministerial act. Unless waived, a copy of the notice shall be delivered or mailed to each party’s attorney of record and to each person who has requested notice of agency action. Each notice shall inform the recipient of the basis for the agency decision, shall inform the recipient of any administrative hearing
pursuant to ss. 120.569 and 120.57 or judicial review pursuant to s. 120.68 which may be available, shall indicate the procedure which must be followed, and shall state the applicable time limits. The issuing agency shall certify the date the notice was mailed or delivered, and the notice and the certification shall be filed with the agency clerk.
Section 373.116, Florida Statutes, provides in pertinent part that:
(2) Upon receipt of an application for a permit of the type referred to in subsection
(1) [water use applications under Part II, Chapter 373, F.S.], the governing board shall cause a notice thereof to be published in a newspaper having general circulation within the affected area. In addition, the governing board shall send by regular or electronic mail a copy of such notice to any person who has filed a written request for notification of any pending applications affecting this particular designated area. At the option of the applicable county or city government, notice of application for the consumptive use of water shall be mailed by regular or electronic mail to the county and appropriate city government from which boundaries the withdrawal is proposed to be made.
Subsection 373.229, Florida Statutes, requires that the notice under section 373.116(2), Florida Statutes, state that written objections to the proposed permit may be filed with the governing board or the department by a specific date.
The evidence of the notices that were published in newspapers and mailed to the public of the City’s permit application and the District’s intended agency action was
unrebutted, and Petitioners failed to present any evidence that the notices were inaccurate, misleading, or failed to comply with the requirements of the law.
The District provided the public with adequate and appropriate notice of the City’s permit application and its intended agency action.
Other Issues Raised by Petitioners
Ownership/Control of the Proposed Area IV Wellfield
In its Amended Petition, Miami Corporation, without citing to any rule, lists as a disputed issue “[w]hether Titusville possesses the requisite ownership or legal control over the property upon which the proposed Area IV Wellfield is to be located.” See Amended Petition at paragraph 60.N.
Nothing in Chapter 373, Florida Statutes, and particularly Section 373.229 or 373.223(1), Florida Statutes, require ownership or legal control of the subject property as a prerequisite to obtain a CUP. Indeed, Section 373.2235, Florida Statutes, plainly states that a CUP applicant can "elect" to acquire a wellfield site prior to obtaining a CUP and that such choice is immaterial to the CUP permitting process--which naturally means that an applicant can also choose not to acquire a wellfield site prior to obtaining a CUP.
In this case, the City has condemnation authority to obtain all necessary property interests to implement the CUP and
any limiting conditions. See § 180.22, Fla. Stat.; City of Cocoa Beach v. Holland Properties, Inc., 625 So. 2d 17 (Fla. 5th DCA 1993) (the city obtained a CUP prior to condemnation of the wellfield locations as a necessary predicate for showing public necessity).
The District has no rule, unadopted rule, or nonrule policy requiring ownership or legal control of the subject property before a CUP may issue.
Petitioners seek to infer such requirement from various sources that mention ownership, legal control or impacts to adjacent properties. For instance, Florida Administrative Code Rule 40C-2.301(5)(a) and Section 9.4.3, A.H., highlight circumstances when a CUP application will be denied. Petitioners seek to infer an ownership requirement because Florida Administrative Code Rule 40C-2.301(5)(a)2., prohibits a drawdown from a proposed water use that will adversely affect stages or vegetation on lands other than those owned, leased or otherwise controlled by the applicant.9 As found, the evidence was that these impacts can be assessed based on the facts of this case. Notably, the rule could have easily listed the lack of ownership or control as a basis for denial of an application, but it does not contain such language.
The limiting conditions set forth in Florida Administrative Code Rule 40C-2.381--involving the need for a
separate water well construction permit, allowance of District inspections, and transfer of ownership or control of the real property--are not criteria for issuance of a CUP, but rather are conditions placed on a permit that otherwise satisfies the conditions for permit issuance in Rule 40C-2.301. Noncompliance with the limiting conditions may serve as a basis for enforcement actions against a permittee, but have no relevance to reasonable assurance needed to obtain a CUP in the first instance. The limiting conditions contemplate that the permittee must eventually obtain ownership or legal control to actually exercise the rights granted by the CUP. See
§ 373.116(3), Florida Statutes (a CUP does not convey to a permittee any property rights).
Finally, while the CUP application form contains subsections entitled “Owner Information” and “Property Control And Location,” this information is not related to conditions for permit issuance, which are contained in Rule 40C-2.301.10 In addition, the “Owner Information” subsection contains a checkbox for a CUP applicant who is not the owner and consequently the form clearly reflects that an applicant need not be the property owner.
Therefore, no permitting criterion in Chapter 373, District rule, or District policy requires the City to have ownership or legal control. Obviously, the City must eventually
obtain sufficient legal interest to exercise the water use rights granted by the permit, which would include the land and access needed for production and transmission, monitoring, and (if and when needed) mitigation augmentation. Otherwise, the CUP would be ineffectual. Section 373.243(4), Florida Statutes, and “Other Condition” 10 allow the Governing Board to revoke the permit permanently and in whole if the water supply allowed by the permit is not used for a period of two years or more unless the permittee can prove that its nonuse was due to extreme hardship caused by factors beyond the permittee’s control. For these reasons, the City will not be allowed to "bank" water it does not use.
Consistency of the Proposed Area IV Wellfield with the 2005 District Water Supply Plan
In its Amended Petition, Miami Corporation, without citing to any rule, lists as a disputed issue “[w]hether the proposed Area IV Wellfield is consistent with the District’s 2005 Water Supply Plan.” See Amended Petition at paragraph 60.HH. Although not specifically articulated in the Amended Petition or Joint Pre-Hearing Stipulation, Petitioners appear to assert that the City’s proposed water use is not consistent with the public interest as required by Florida Administrative Code Rule 40C-2.301(2)(c), because the proposed use is not consistent with the District’s Water Supply Plan.
This contention is precluded by the express language of Section 373.0361(6), Florida Statutes, which states: “Except as provided in s. 373.223(3) and (5), the plan may not be used in the review of permits under part II unless the plan or an applicable portion thereof has been adopted by rule.” The 2005 District Water Supply Plan has not been adopted by rule. Moreover, except for the types of water uses sought under Section 373.223(3) and (5) that are inapplicable to this proceeding, Section 373.0361(6), Florida Statutes, prohibits the District from using the plan in the review of the City’s application, and states that the City was not required to use an alternative water supply project identified in the plan.11 Therefore, nothing in the plan can legally serve as a basis for the issuance or denial of the City’s application.
Finally, to the extent Petitioners rely on the plan’s identified water supply development projects to argue that the City has available lower acceptable water quality sources for its public consumption allocation, this assertion also fails because Rule 40C-2.301(4)(g) states that a use intended for direct human consumption or human food preparation is not subject to the lowest acceptable quality water source criterion, unless higher quality water sources are unavailable to meet projected demands. See, e.g., Marion County v. Greene and SJRWMD, DOAH Case No. 06-2464 (SJRWMD Final Order 2007) at
Appendix D pp. 59 and 60. The evidence in this case established that a higher quality water source--namely, the UFAS--is available to meet the City’s projected demands. In addition, the City is proposing to use the lowest acceptable water quality water source available--namely, reclaimed water--for uses other than human consumption and food preparation.
Priority Water Resource Caution Areas
In its Amended Petition, Miami Corporation suggests that the permit may not be issued because the proposed Area IV Wellfield is located in a priority water resource caution area. See Amended Petition at paragraph 58. As part of its water supply planning process, the District designates priority water resource caution areas in its Water Supply Plan. A priority water resource caution area is an area where existing and reasonably anticipated sources of water and water conservation efforts may not be adequate (1) to supply water for all existing legal uses and anticipated future needs and (2) to sustain the water resources and related natural systems.
The City’s proposed Area IV Wellfield is located in a priority water resource caution area. However, there is nothing in Chapter 373, and nothing in a District rule or policy, that prohibits the issuance of a CUP in an area which has been designated as priority water resource caution area. Petitioners’ contention that the permit must be denied because
the consumptive use is located within a priority water resource caution area in the District’s Water Supply Plan is precluded by the express language of Section 373.0361(6), Florida Statutes, as described previously.
Timeframe for Construction
Petitioners take the position that the proposed CUP should be denied if the City cannot provide reasonable assurance that the Area IV Wellfield will be operational before its expiration at the end of 2010, taking into account the time for eminent domain and for litigation over the legality and extent of the City's FEC easement. There are three reasons why the proposed CUP should not be denied on that ground. First, it is likely that the City will apply to renew both the existing CUP for Areas II and III and the proposed CUP for Area IV. Second, it would be bad policy for CUPs to be denied on the basis of delay resulting from litigation by an opponent of the proposed CUP. Third, as found, given the reasonable 33-month estimate for implementation (without time for litigation of a contest over the legality and extent of the FEC easement), the CUP would have to be issued by March 2008 to be completed before expiration and probably would be in operation for approximately six months before expiration.
Permit Processing Fee
Petitioners have alleged that the City has not paid the correct permit processing fee. Pursuant to Rule 40C- 1.603(1)(a), the correct permit processing fee for a new consumptive use permit application requesting an allocation of greater than 500,000 gallons per day is $1,000. The unrebutted testimony established that all required permit processing fees have been paid for CUP application 99052.
Legality of Duration of Permit
Petitioners argued in their PRO that the short duration of the proposed CUP is contrary to A.H. Section 6.5.2(a), which provides:
When an applicant fails to provide reasonable assurance to support a 20 year duration or when the applicant does not request a duration of 20 years, a consumptive use permit shall have a duration of 10 years unless the Governing Board determines that a different permit duration is warranted based on a consideration and balancing of the factors listed in section
6.5.3. However, in no case shall the duration of an individual permit exceed the life of the activity for which the water is used.
Petitioners did not raise this issue in their Amended Petitions or in the Joint Pre-hearing Stipulation, and it is not proper for them to raise it for the first time in their PRO. See
Woodholly Associates v. Dept. of Natural Resources, 451 So. 2d 1002, 1004 (Fla. 1st DCA 1984) (it was too late in proposed
order to raise a new issue which was not raised in the pleadings or the pretrial stipulation). Even if properly raised, the issue does not have merit.
A.H. Section 6.5.2(a) contemplates a scenario where an applicant has requested a 20-year permit, but has failed to provide reasonable assurance to support that permit duration. It then contemplates the applicant who requests a permit duration of between 10 and 20 years. It does not prevent applicants from requesting, or the District from issuing, permits with durations of less than 10 years.
Where an applicant has requested a CUP with a duration of less than ten years, as here, it is logical for the District to begin its analysis regarding duration at the duration requested by the applicant, as opposed to ten years, as Petitioners argue A.H. Section 6.5.2(a) requires. Such an approach also is consistent with Section 373.236(1), Florida Statutes, which provides:
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 assurance can be provided. The governing board or the department may base the duration of permits on a reasonable system
of classification according to source of supply or type of use, or both.
(Emphasis added).
Even if Petitioners’ interpretation that the duration deliberation must begin at ten years is accepted, the consideration and balancing of factors within A.H. Section 6.5.3 leads to the same conclusion. The City applied for a CUP with a short duration and did not provide evidence of pertinent reasonable assurances beyond the requested permit duration. For that reason, issuance of a CUP with a longer duration is not warranted.
Standing
Petitioners make the argument that standing only requires sufficient allegations, not proof of standing allegations. This argument is rejected as contrary to statutory and case law. On the other hand, it is not necessary to successfully challenge a proposed permit on the merits in order to establish standing. While the evidence used to prove a permit challenger's standing usually is part of the case on the merits, standing is not dependent on the merits. Standing and the merits of a claim are different concepts. See, e.g., Village Park Mobile Home Ass'n., Inc. v. State Dept. of Business Regulation, 506 So. 2d 426, 433 (Fla. 1st DCA 1987); St.
Martin's Episcopal Church v. Prudential-Bache Securities, 613
So. 2d 108, 109, n. 4 (Fla. 4th DCA 1993). If standing were based on whether a claim was proved, every losing petitioner would lack standing.
Party status under Sections 120.569 and 120.57, Florida Statutes, is based on allegations and proof that "substantial interests will be affected by proposed agency action." § 120.52(12)(b), Fla. Stat. This requires allegations and proof of "an injury in fact which is of sufficient immediacy and is of the type and nature intended to be protected" by the substantive law. § 403.412(5), Fla. Stat. See also Agrico
Chemical Co. v. Dept. of Environmental Reg., 406 So. 2d 478 (Fla. 2d DCA 1981). In addition, Section 403.412(5), Florida Statutes, provides:
No demonstration of special injury different in kind from the general public at large is required. A sufficient demonstration of a substantial interest may be made by a petitioner who establishes that the proposed activity, conduct, or product to be licensed or permitted affects the petitioner's use or enjoyment of air, water, or natural resources protected by this chapter.
As found, the evidence was that both Petitioners have substantial interests (the quality of water in the aquifer from which their wells withdraw water and wetlands on their property) that would be affected by the proposed CUP at least to some extent, albeit not enough to prevent issuance of the proposed CUP under the permitting criteria.
Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the District issue the City a CUP for Area IV as provided in the second revised TSR, except for a lower water allocation at this time, namely: 0.75 mgd on an annual average basis, with appropriately lower allocations on the other bases in the TSR, and with a combined annual average rate for Areas II, III, and IV in "Other Condition" 5 of 5.2 mgd for 2009 and 2010 instead of 5.79 mgd in 2009 and 2010, and appropriately lower combined maximum daily rates for Areas II, III, and IV in "Other Condition" 9. Jurisdiction is reserved to hear and rule on the pending motions for sanctions if renewed no later than 30 days after entry of the final order in this case.
DONE AND ENTERED this 31st day of July, 2007, in Tallahassee, Leon County, Florida.
S
J. LAWRENCE JOHNSTON 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 31st day of July, 2007.
ENDNOTES
1/ See City's Notice of Filing Deposition of Miami Corporation's Corporate Representative Earl Underhill and Identification of Testimony and Exhibits for Rebuttal Purposes filed with DOAH on April 12, 2007, and Petitioners' Joint Response and Objections filed on April 18, 2007.
2/ See Joint Stipulation Regarding Admission of Deferred Exhibits filed March 30, 2007, and Joint Stipulation Regarding Admission of Titusville's Deferred Cross-Examination Exhibits and Admission of Depositions filed April 26, 2007.
3/ Only the District and Petitioners attempted to list the admitted documents in their proposed recommended orders, and their lists do not match.
4/ See Joint Stipulation Regarding Admission of Deferred Exhibits filed March 30, 2007.
5/ At least some of this information, in City Exhibit 19, was demonstrated to be inaccurate, as reflected in Finding 59, infra. Specifically, some of the pumpage information in the 2000's was too high. Nonetheless, since the City introduced the evidence, it is being used to support a finding that chloride problems appear to have been caused by excessive pumping.
6/ Unless otherwise indicated, statutes refer to the 2006 codification of the Florida Statutes.
7/ Unless otherwise indicated, rules refer to the version of the Florida Administrative Code in effect during the final hearing, as reflected in Appendices to the Applicant's Handbook: Consumptive Uses of Water, dated February 15, 2006.
8/ The correct citations are to A.H. Sections 12.2.1 and
12.2.2. A.H. Section 12.4 only applies to mining-type uses.
9/ The rule implements the State water use policy identified in Rule 62-40.410(2)(g). See § 373.114(2), Fla. Stat. (the Department reviews water management district rules for
consistency with Rule Chapter 62-40). Rule 62-40.410 is not a regulatory permit criteria for the issuance of District CUPs. See Rule 62-40.410(4).
10/ The application form is adopted as a rule in Rule 40C- 2.900(1) and is contained in Appendix C of the Applicant’s Handbook.
11/ Although not required to do so in this case, District staff may consider or use the data or other information used to establish the plan in reviewing consumptive use permits. See
§ 373.0361(6), Fla. Stat.
COPIES FURNISHED:
Kirby B. Green, III, Executive Director St. Johns River Water Management District 4049 Reid Street
Palatka, Florida 32177-2529
Mary Ellen Winkler, Esquire
St. Johns River Water Management District 4049 Reid Street
Palatka, Florida 32177-2529
Chris H. Bentley, Esquire Rose, Sundstrom & Bentley, LLP Post Office Box 1567
Tallahassee, Florida 32302-1567
Edward P. de la Parte, Jr., Esquire de la Parte & Gilbert, P.A.
101 East Kennedy Boulevard, Suite 3400 Post Office Box 2350
Tampa, Florida 33601-2350
J. Stephen Menton, Esquire
Rutledge, Ecenia, Purnell & Hoffman, P.A. Post Office Box 551
Tallahassee, Florida 32302-0551
Thomas I. Mayton, Jr., Esquire
St. Johns River Water Management District 4049 Reid Street
Palatka, Florida 32177-2529
Karen C. Coffman, Esquire St. Johns River Water
Management District 4049 Reid Street
Palatka, Florida 32177-2529
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 13, 2007 | Agency Final Order | |
| Jul. 31, 2007 | Recommended Order | Public water supply consumptive use permit application met all criteria except for the allocation amount which the Recommended Order reduces. |
