Ann B. Shortelle, Ph.D., Executive Director •,J , ,:'. ? Y < ; '•,§ ' ,
1
4049 Reid Street • P.O. Box 1429 • Palatka, FL 32178-1429 • ( 6)329-lsdb ,0,, ·
On the Internet at floridaswater.com. ·,t · , ·, ', ,,1.l 1
Hon. E. Gary Early Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-3060
July 15, 2015
" >j
RE: Sierra Club, Inc., and St. Johns Riverkeeper, Inc. and Florida Defenders of the Environment, Inc., v. Sleepy Creek lands, LLC and St. Johns River Water Management District; (DOAH Case No. 14-2608)
Karen Ahlers and Jeri Baldwin, and Florida Defenders of the Environment, Inc., v. Sleepy Creek Lands, LLC and St. Johns River Water Management District; (DOAH Case Nos. 14-2609 and 14-2610)
Dear Judge Early:
As required by section 120.57(1)(m) of the Florida Statutes, I have enclosed a disk containing copies of the following documents for the above-styled case(s):
Final Order - Environmental Resource Permit,
Final Order - Consumptive Use Permit,
Petitioners' Exceptions to Recommended Order, and
St. Johns River Water Management District's Exceptions to Recommended Order.
Sin erel, I/. ;/ ·. If
/:lvc J
Myra B. erschnick
Legal Administrative Assistant Office of General Counsel
/mbp Enclosure
cc: William H. Congdon, General Counsel
GOVERNING BOARD
John A. Miklos, CHAIRMAN ORLANDO
Douglas C. Boumique
VERO BEACH
Fred N. Roberts Jr., VICE CHAIRMAN OCALA
Douglas Burnett Maryam H. Ghyabi
ST. AUGUSTINE ORMOND BEACH
Chuck Drake, SECRETARY ORLANDO
Ron Howse
COCOA
Carla Yetter, TREASURER FERNANDINA BEACH
George W. Robbins
JACKSONVILLE
ST. JOHNS RIVER WATER MANAGEMENT DISTRICT
SIERRA CLUB, INC., and ST. JOHNS RIVERKEEPER, INC.,
Petitioners,
and
FLORIDA DEFENDERS OF THE ENVIRONMENT, INC.,
Intervenor,
v. DOAH Case No.:
SLEEPY CREEK LANDS, LLC and ST. JOHNS RIVER WATER MANAGEMENT DISTRICT,
Respondents.
- - - - - - - - - - - - - - I
KAREN AHLERS and JERI BALDWIN,
14-2608
Petitioners,
and
FLORIDA DEFENDERS OF THE
ENVIRONMENT, INC., | ||
Intervenor, | DOAH Case No.: | 14-2609 |
V. | 14-2610 | |
SLEEPY CREEK LANDS, LLC and ST. JOHNS RIVER WATER MANAGEMENT DISTRICT, | ||
Respondents.
I
FINAL ORDER CONSUMPTIVE USE PERMIT
The Division of Administrative Hearings, by its designated Administrative Law Judge, the Honorable E. Gary Early ("ALJ"), held a formal administrative hearing in the above-styled
case on August 25-29, 2014, in Palatka, Florida. On April 29, 2015, the ALJ submitted a Recommended Order to the St. Johns River Water Management District ("District"). The Recommended Order contains findings of fact and conclusions of law regarding Environmental Resource Permit application IND-083-130588-4, and a consumptive use permit modification request to: (a) consolidate two existing consumptive use permits into a single consumptive use permit 2-083-91926-3; (b) change the type of agricultural use from supplemental irrigation for sod farming to supplemental irrigation for improved pasture and grain crops, cattle watering, and chemigation; (c) relocate withdrawal points; and (d) extend the permit term (duration) (hereafter
-3 Modification). Petitioners Sierra Club, Inc. and St. Johns Riverkeeper, Inc., and Individual Petitioners Karen Ahlers and Jeri Baldwin, along with Intervenor Florida Defenders of the Environment, Inc., and District staff filed exceptions to the Recommended Order. All parties filed responses to exceptions. This matter then came before the Governing Board of the St. Johns River Water Management District for final agency action and entry of a Final Order for the Consumptive Use Permit.
STATEMENT OF THE ISSUE
The general issue before the District is whether to adopt the Recommended Order as the District's Final Order, or to reject or modify the Recommended Order in whole or in part, in accordance with Section 120.57(1)(1), Florida Statutes ("F.S.").1 The specific issue is whether the consumptive use permit ("CUP") modification request 2-083-91926-3 (-3 Modification) meets the conditions for issuance as set forth in Section 373.223, F.S., Chapter 40C-2, Florida Administrative Code ("F.A.C."), and the Applicant's Handbook: Consumptive Uses of Water, Chapter 40C-2, F.A.C. (September 16, 2012). The -3 Modification from Sleepy Creek Lands,
1 References to statutes are to Florida Statutes (2014), unless otherwise noted.
LLC ("Sleepy Creek"), is for continued authorization to use 1.46 million gallons per day (mgd) of groundwater with a change in agricultural use type to irrigation of 2,231 acres of improved pasture and other crops, and watering cattle for 20 years. The ALJ recommended "issuance of Consumptive Use Permit No. 2-083-91926-3 to Sleepy Creek Lands, LLC on the terms and conditions set forth in the complete permit application for Consumptive Uses of Water and the Consumptive Use Technical Staff Report." (RO at 136)
STANDARD OF REVIEW
The rules regarding an agency's consideration of exceptions to a recommended order are well established. The agency is prescribed by Section 120.57(1)(1), F.S., in acting upon a recommended order. The ALJ, not the agency, is the fact finder. Goss v. Dist. Sch. Bd. of St. Johns County, 601 So. 2d 1232, 1235 (Fla. 5th DCA 1992); Heifetz v. Dep't of Bus. Regulation, 475 So. 2d 1277, 1281-82 (Fla. 1st DCA 1997). A finding of fact may not be rejected or modified unless the agency first determines from a review of the entire record that (1) the finding of fact is not based upon competent substantial evidence or (2) that the proceedings on which the finding of fact was based did not comply with the essential requirements of law. See
§120.57(1)(1), Fla. Stat. In its review, the District must be guided by the true nature of the finding, not its title. "The mere fact that what is essentially a factual determination is labeled a conclusion of law, whether labeled by the hearing officer or the agency, does not make it so, and the obligation of the agency to honor the hearing officer's findings of fact cannot be avoided by categorizing a contrary finding as a conclusion oflaw." See Kinney v. Dept. of State, 501 So. 2d 1277 (Fla. 5th DCA 1987); Pillsbury v. State, Dep't of Health & Rehabilitative Servs., 744 So. 2d 1040, 1041-42 (Fla. Dist. Ct. App. 1999); Goin v. Comm. on Ethics, 658 So. 2d 1131 (Fla. 1st DCA 1995); and Barbara Herrin v. J'olusia County, 2012 WL 1303679, at 3 (Conclusions oflaw
labeled as findings of fact, and findings labeled as conclusions, will be considered as a conclusion or finding based upon the statement itself and not the label assigned.) Charlotte Cty
IMC Phosphates Co., 18 So. 3d 1089 (Fla. 2d DCA 2009); Wills v. Fla. Elections Comm'n,
955 So. 2d 61 (Fla. 1st DCA 2007).
Competent substantial evidence
"Competent substantial evidence" is such evidence as is sufficiently relevant and material that a reasonable mind would accept such evidence as adequate to support the conclusion reached. Perdue v. TJ Palm Associates, Ltd., 755 So. 2d 660 (Fla. 4th DCA 1999). The term "competent substantial evidence" relates not to the quality, character, convincing power, probative value or weight of the evidence, but refers to the existence of some quantity of evidence as to each essential element and as to the legality and admissibility of that evidence. Scholastic Book Fairs v. Unemployment Appeals Commission, 671 So. 2d 287, 289 (Fla. 5th DCA 1996); Nunez v. Nunez, 29 So. 3d 1191, 1192 (Fla. 5th DCA 2010).
If a finding is supported by any competent substantial evidence from which the finding could be reasonably inferred, the finding cannot be disturbed. Freeze v. Dep't. of Bus. Regulation, Div. of Alcoholic Beverages & Tobacco, 556 So. 2d 1204 (Fla. 5th DCA 1990); Berry v. Dep't of Envtl. Regulation, 530 So. 2d 1019 (Fla. 4th DCA 1998). See also Save Our Creeks, Inc. and Environmental Confederation of Southwest Florida, Inc. v. Florida Fish and Wildlife Conservation Commission and Dep't of Environmental Protection, 2014 WL 211098 (Jan. 15, 2014). The agency may not reweigh evidence admitted in the proceeding, may not resolve conflicts in the evidence, may not judge the credibility of witnesses or otherwise interpret evidence anew. Goss, 601 So. 2d at 1235; Peace River/Manasota Regional Water Supply Authority v. IMC Phosphates Co., 18 So. 3d 1079, 1088 (Fla. 2d DCA 2009); Rogers v. Dep't of
Health, 920 So. 2d 27, 30 (Fla. 1st DCA 2005); Brown v. Criminal Justice Standards & Training Comm 'n, 667 So. 2d 977 (Fla. 4th DCA 1996). The issue is not whether the record contains evidence contrary to the findings of fact in the recommended order, but whether the finding is supported by competent substantial evidence. Florida Sugar Cane League v. State Siting Bd., 580 So. 2d 846, (Fla. 1st DCA 1991). Finally, the District is precluded from making additional or supplemental findings of fact. Florida Power & Light v. State Siting Board, 693 So. 2d 1025, 1026-27 (Fla. 1st DCA 1997); See also North Port Fla. v. Consol. Minerals, 645 So. 2d 485,487 (Fla. 2d DCA 1994); Boulton v. Morgan, 643 So. 2d 1103 (Fla. 4th DCA 1994)(agency may not make supplemental findings of fact on an issue where the hearing officer has made no findings); Cohn v. Dep't Professional Regulation, 477 So. 2d 1039 (Fla. 3d DCA. 1985)(agency has no authority to make supplemental findings on matters susceptible of ordinary proof; if missing findings are critical to resolve the issue, the agency should remand).
Essential requirements of law
A reviewing agency may also reject or modify a finding of fact if it determines from a review of the entire record, and states with particularity in the order, that the finding is based on a proceeding that did not comply with the "essential requirements of law." See §120.57(1)(1), Fla. Stat. As stated by Judge Benton, in his concurring opinion in Florida Power & Light Co. at 1028 (Fla. Ist DCA 1997), citing to the 1996 amendment to the Administrative Procedure Act:
Except in the most extreme cases - those where "the proceedings did not comply with essential requirements of law"-the Administrative Procedure Act (APA) precludes an agency's changing an ALJ's finding of fact on any basis other than the lack of substantial competent evidence to support it. Among the revisions to the APA which will apply on remand, see Life Care Ctrs. of Am. v. Sawgrass Care Ctr., 683 So.2d 609 (Fla. 1st DCA 1996), is language intended to foreclose altogether evidentiary rulings in a final order entered after entry of a recommended order.
Id. See also Putnam Cnty. Envtl. Council, Inc. et al v. Dept. Envtl. Protection and Georgia Pacific Corp., Case No. 01-2442, pp. 8-9 (Fla. DOAH July 3, 2002; DEP Aug. 6, 2002) (holding that, based on a review of the record, the DOAH proceeding did not constitute an extreme case where procedural and evidentiary rulings of the ALJ adverse to the Petitioners were so "egregious" as to violate the "essential requirements of law" within the purview of
§120.57(1)(1), F.S.) (emphasis added); Cf State Dept. of Financial Services v. Mistretta, 946 So. 2d 79, 80 (Fla. 1st DCA 2006) (holding that ALJ who sua sponte raised and decided the issue of default after the final hearing without giving parties an opportunity to present evidence and/or argument departed from the essential requirements of law by denying due process). Therefore, an agency may not reject or modify a finding of fact that is supported by competent substantial evidence except in the most extreme cases.
Subject matter jurisdiction
With respect to conclusions of law in the recommended order, the agency may reject or modify the conclusions of law over which it has substantive jurisdiction and interpretations of administrative rules over which it has substantive jurisdiction, provided the reasons for such rejection or modification are stated with particularity and the agency finds that such rejection or modification is as, or more reasonable than, the ALJ's conclusion or interpretation. See
§120.57(1)(1), Fla. Stat. In interpreting the term "substantive jurisdiction," the courts have
continued to interpret the standard of review as requiring deference to the expertise of an agency in interpreting its own rules and enabling statutes. See, e.g., State Contracting & Eng'g Corp. v. Dep't of Transp., 709 So. 2d 607, 610 (Fla. 1st DCA 1998). The "deference rule" recognizes that:
Policy considerations left to the discretion of an agency may take precedence over findings of fact by an administrative law judge. The rule provides:
Matters that are susceptible of ordinary methods of proof, such as determining the credibility of witnesses or the weight to accord evidence, are factual matters to be determined by the hearing officer. On the other hand, matters infused with overriding policy considerations are left to agency discretion. Baptist Hosp., Inc. v. Department of Health & Rehabilitative Servs., 500 So.2d 620, 623 (Fla 1st DCA 1986) (citations omitted); McDonald v. Department of Banking & Fin., 346 So.2d 569 (Fla. 1st DCA 1977).
Gross v. Dept. of Health, 819 So. 2d 997, 1002 (Fla. 5th DCA 2002). Matters infused with overriding policy considerations include instances where an agency must interpret one of its own rules, or where a statute confers broad discretionary authority upon the agency which depends on whether certain criteria are found by the agency to exist. Id. at 1002.
The agency lacks subject matter jurisdiction to overturn an ALJ's rulings on procedural and evidentiary issues. Barfield v. Dep't of Health, 805 So. 2d 1008, 1012 (Fla. 1st DCA 2001) (the agency lacked jurisdiction to overturn an ALJ's evidentiary ruling); Lane v. Dep't of Envtl. Protection, 29 F.A.L.R. 4063 (DEP 2007) (the agency has no substantive jurisdiction over procedural issues, such as whether an issue was properly raised, and over an ALJ's evidentiary rulings); Lardas v. Dep't of Envtl. Protection, 28 F.A.L.R. 3844, 3846 (DEP 2005) (evidentiary rulings of the ALJ concerning the admissibility and competency of evidence are not matters within the agency's substantive jurisdiction).
The agency's authority to modify a recommended order is not dependent on the filing of exceptions. Westchester Gen. Hosp. v. Dept of Health and Rehabilitative Serv., 419 So. 2d 705 (Fla. 1st DCA 1982). However, when exceptions are filed, they become part of the record before the agency. See §120.57(1)(£), Fla. Stat. In the final order, the agency must expressly rule on each exception, except for any exception that does not clearly identify the disputed portion of the recommended order by page number or paragraph, that does not identify the legal basis for the
exception, or that does not include appropriate and specific citations to the record. See
§120.57(1)(k), Fla. Stat. Thus, the agency is not required to rule on an omnibus exception in which a party states that its exception to a particular finding of fact is also an exception to any portion of the recommended order where the finding of fact is restated or repeated.
EXCEPTIONS AND RESPONSES
The Administrative Procedure Act provides the parties to an administrative hearing with an opportunity to file exceptions to a recommended order. See §§120.57(1)(b) and (k), Fla. Stat. The purpose of exceptions is to identify errors in a recommended order for the agency to consider in issuing its final order. As discussed aboye in Section B (Standard of Review), the agency may accept, reject, or modify the recommended order within certain limitations. When the agency considers a recommended order and exceptions, its role is like that of an appellate court in that it reviews the sufficiency of the evidence to support the ALJ's findings of fact and, in areas where the District has substantive jurisdiction, the correctness of the ALJ's conclusions oflaw. In an appellate court, a party appealing a decision must show the court why the decision was incorrect so that the appellate court can rule in the appellant's favor. Likewise, a party filing an exception must specifically alert the agency to any perceived defects in the ALJ's findings, and in so doing the party must cite to specific portions of the record as support for the exception. John D. Rood and Jamie A. Rood v. Larry Hecht and Dep't of Envtl. Protection, 21 F.A.L.R. 3979, 3984 (DEP 1999); Kenneth Walker and R.E. Oswalt d/b/a Walker/Oswalt v. Dep't ofEnvtl. Protection, 19 F.A.L.R. 3083, 3086 (DEP 1997); Worldwide Investment Group, Inc. v. Dep't of Envtl. Protection, 20 F.A.L.R. 3965, 3969 (DEP 1998). To the extent that a party fails to file written exceptions to a recommended order regarding specific issues, the party has waived such specific objections. Environmental Coalition of Florida, Inc. v. Broward County, 586 So. 2d 1212, 1213 (Fla. lstDCA 1991).
In addition to filing exceptions, the parties have the opportunity to file responses to exceptions filed by other parties. See Fla. Ad.min. Code R. 28-106.217(2). The responses are meant to assist the District in evaluating and ultimately ruling on exceptions by providing legal
argument and citations to the record.
Petitioners Karen Ahlers, Jeri Baldwin, Sierra Club, Inc., and St. Johns Riverkeeper, Inc., as well as Intervenor Florida Defenders of the Environment, Inc. (collectively "Petitioners"), jointly filed 11 exceptions to the ALJ's Recommended Order on May 14, 2015. The District filed six exceptions on May 14, 2015, and the Respondent Sleepy Creek elected not to file exceptions. This order makes rulings on the exceptions only to the extent they are directed at findings of fact and conclusions of law for the -3 Modification. In addition, rulings are provided in many instances even where they are not legally required by Chapter 120, Florida Statutes.
PUBLIC COMMENT
The Administrative Procedure Act in certain instances allows the general public to participate in an administrative hearing.
Section 120.57(1)(b), Florida Statutes, states, in part:
When appropriate, the general public may be given an opportunity to present oral or written communications. If the agency proposes to consider such material, then all parties shall be given an opportunity to cross-examine or challenge or rebut the material.
The ALJ granted the Petitioners' oral motion for public comment in this proceeding. {T: 23-29, 226-228; RO at 8) On August 28, 2014, the ALJ provided members of the general public the opportunity to present oral and written communications. The District, through its counsel, agreed to consider the public comment "at the time it takes final agency action in this proceeding." (T: 226-229, 556-557; RO at 8) Therefore, the parties were given an opportunity to
cross-examine, challenge, or rebut the material presented. See §120.57(1)(b), Fla. Stat. With one exception, the parties waived that opportunity. Forty-eight individuals participated, some of whom provided documents, photographs, or videos ("written communications"), to the ALJ. A two-volume transcript of the public comment period including copies of the written communications was provided to the District with the Recommended Order on April 29, 2015.
RULINGS ON EXCEPTIONS2
RULINGS ON PETITIONERS' EXCEPTIONS
Petitioners' Exception No. 1
Petitioners take exception to 23 COLs and 25 FOFs on essentially two grounds.3 First, they contend that "the hearing process was not consistent with the essential requirements of law." (Pet. Exception at 26-27) Second, Petitioners argue that the ALJ erred by "failing to consolidate the sequence 4 permit application with the instant sequence 3 permit application for simultaneous cumulative consideration." (Pet. Exception at 13) These grounds are related in that Petitioners argue that the ALJ's denial of their motion to consolidate their petitions
2 Citations to page numbers in the transcript of the formal administrative hearing will be designated by transcript page(s); (e.g. T: 234). Citations to exhibits admitted by the ALJ will be made by identifying the party that entered the exhibit followed by the exhibit number (e.g. Jt. Ex. 2). Citations to the Prehearing Stipulation will be designated by "Stip." followed by paragraph
number (Stip. at ,r _). Citations to the Recommended Order will be designated by "RO" page (p.) or paragraph (,r) number (e.g. RO at 13; RO at ,r 12). Citations to the District's Applicant's
Handbook: Consumptive Uses of Water, Chapter 40C-2, F.A.C. (Sept. 16, 2012) will be designated by the abbreviation "CUP AH" followed by the section number (e.g., CUP AH
§10.3(g)). Citations to the District's Applicant's Handbook: Environmental Resource Permit Applicant's Handbook Volume I (General and Environmental) and Volume II (effective October 1, 2013) will be designated by the abbreviation "ERP AH" followed by the volume number ("Vol. I" or "Vol. II") and the section number (e.g., ERP AH Vol. I §3.4.l(b)). Citations to the parties' exceptions and their respective responses to filed exceptions will be referred to as "Pet. Exception at", "Dist. Exception at", "Dist. Response to Pet. Exception at" and "Pet. Response to Dist. Exception at" followed by the page number.
3 The COLs are: 290,291,295,296,298, 312-315, 321, 323,326,327,338,339,341,342, 344,
346,348,349,394 and 395. The FOFs are: 8-10, 23, 170, 171, 172, 174-189, 191 and 212.
regarding the -3 Modification and -4 application in a single proceeding resulted in a hearing that did not comply with the essential requirements of law. For the reasons explained below, the exception is denied.4
As to the first grounds, and as explained above under the heading "Essential requirements of law," only findings of fact may be excepted to on the grounds that the proceedings on which the findings were based did not comply with essential requirements of law. See § 120.57(1)(1), Fla. Stat. Thus, to the extent this exception is directed at conclusions of law, the exception does not state a valid basis as required by section 120.57(1)(k), F.S., and the District need not provide a ruling on this portion of the exception.
To reject or modify a finding of fact on the grounds that the proceedings did not comply with the essential requirements of law, the District would need to determine that the ALJ's rulings in the proceedings were so "egregious" or "extreme" as to warrant rejection of findings of fact that are supported by competent substantial evidence in the record. See Putnam Cnty. Envtl. Council. Inc., et al v. Dept. Envtl. Protection and Georgia-Pacific Corp., Case No. 01- 2442, pp.8-9 (Fla. DOAH July 3, 2002; DEP Aug. 6, 2002), and Florida Power & Light Co. v. State of Florida Siting Bd., 693 So. 2d 1025, 1028 (Fla. 1st DCA 1997).
Such extreme circumstances did not exist in this case where, with one exception, all of the findings of fact to which Petitioners take exception are supported by competent substantial evidence and where, in ruling on a motion, the ALJ exercised his discretion regarding the procedural issue of whether two cases should be consolidated. Cf State Dept. of Financial Services v. Mistretta, 946 So. 2d 79, 80 (Fla. 1st DCA 2006) (holding that ALJ who sua sponte raised and decided the issue of default after the final hearing without giving parties an
4 Much of the text of Petitioners' exception addresses the scope of review of the -3 Modification, an issue that is addressed in the ruling on Petitioners' Exception No. 3.
opportunity to present evidence and/or argument departed from the essential requirements oflaw by denying due process).5
In essence, Petitioners are requesting the District revisit the ALJ's ruling in which he denied Petitioners' Motion to Consolidate the -4 application with the -3 Modification. The consolidation of cases filed under the Administrative Procedure Act is governed by chapter 120, Florida Statutes, and rules implementing this chapter, including rule 28-106.108, F.A.C., entitled "Consolidation." As explained under the heading "Subject matter jurisdiction" above, the District generally does not have substantive jurisdiction over the interpretation of these statutes and rules, and lacks jurisdiction to overturn an ALJ's rulings on procedural issues.
The District notes that consolidation of cases is permissive and not mandatory and, thus, it was within the ALJ's discretion as to whether or not to consolidate the cases. See Fla. Admin. Code R. 28-106.108(stating that "[i]f there are separate matters which involve similar issues of law or fact, or identical parties, the matters may be consolidated if it appears that consolidation would promQte the just, speedy, and inexpensive resolution of the proceedings, and would not unduly prejudice the rights of a party") (emphasis added). The record reflects that the ALJ considered the motion, the Respondents' responses, and the Petitions for Administrative Hearing filed by Petitioners (regarding the -4 application), and accepted all allegations set forth in Petitioners' motion. The ALJ held that the consolidation of Petitioners' petitions regarding the Sequence 4 permit application with the -3 Modification "is not necessary to promote the just, speedy, and inexpensive resolution of the proceedings, nor would denial of the motion unduly prejudice the rights of a party." See Order Denying Petitioners' and Intervenors' Emergency
5 See, e.g., Stip: 6-7; Jt. Ex. 23, 24, 44, 47, 48, 51, and 52; Figure 7A, 8A, and 9A; T: 238,480,
481,497,498,657, 786 -789, 802, 803, 1232, 1234, 1323 and 1324.
Motion to Consolidate and for Continuance (DOAH Aug. 14, 2014 at 1).
Petitioners' Exception No. 2
Petitioners take exception to 24 FOFs and 22 COLs on two grounds.6 First, they contend the -4 application and the -3 Modification "should have been consolidated and considered together." (Pet. Exception at 27) Second, Petitioners argue "the ALJ erroneously excluded evidence relating to CUP Sequence 4 application" by failing to "consider evidence relating to the data, analysis and considerations" of the - 4 application in the de nova administrative proceeding. (Pet. Exception at 27) These grounds are related in that Petitioners assert the ALJ's failure to consolidate the proceedings and exclusion of evidence resulted in proceedings that did not comply with the essential requirements of law. The consolidation of cases and the consideration of evidence are procedural in nature, and governed by Chapter 120, Florida Statutes, and its implementing rules. The District does not have subject matter jurisdiction over the ALJ's procedural decisions. For the reasons explained below, the exception is denied.
As to the first ground, the ALJ exercised his discretion regarding the procedural issue of whether the cases should be consolidated. 7 See ruling on Exception 1. Additionally, as explained above under the heading "Essential requirements of law," only findings of fact may be excepted to on the grounds that the proceedings on which the findings were based did not comply with essential requirements oflaw. See §120.57(1)(1), Fla. Stat. Thus, to the extent this exception is directed at conclusions of law, the exception does not state a valid basis as required by section 120.57(1)(k), F.S., and the District need not provide a ruling on this portion of the
6 FOF paragraphs 8-10, 23, 170-172, 174-189, 191, and 212, and COL paragraphs 291, 295, 296,298,312-315,321,323,326,327,338,339,341,342,344,346,348,349,and394-395.
7 Petitioners request that Exception 1 be incorporated into Exception 2 (Pet. Exception at 27 to RO). The District is not obliged to rule on this portion of the exception. See Section B.III. supra.
exception.
With respect to the second ground, Petitioners claim "the ALJ erroneously excluded evidence relating to the CUP Sequence 4 application" by failing to "consider evidence relating to the data, analysis and considerations relating to the denial of the - 4 application which should at least have been considered in this de novo proceeding." (Pet. Exception at 27) The decision to consider evidence is an evidentiary matter on which the ALJ is afforded wide discretion and the District lacks jurisdiction. Barfield v. Dep't of Health, 805 So. 2d 1008, 1012 (Fla. 1st DCA 2001) (the agency lacked jurisdiction to overturn an ALJ's evidentiary ruling); Lane v. Dep't of Envtl. Protection, 29 F.A.L.R. 4063 (DEP 2007) (the agency has no substantive jurisdiction over procedural issues, such as whether an issue was properly raised, and over an ALJ's evidentiary rulings); Lardas v. Dep't of Envtl. Protection, 28 F.A.L.R. 3844, 3846 (DEP 2005) (evidentiary rulings of the ALJ concerning the admissibility and competency of evidence are not matters within the agency's substantive jurisdiction).
Petitioners' Exception No. 3
Modification of the Existing CUPs
Petitioners take exception to COLs 290, 291, 295, 296, 326, 344, 394 and 395,8 on the grounds that ''the ALJ erred by accepting District Staffs artificially truncated review of the Conditions for Issuance" and that "for the period of the extension there has never been a full review of the conditions of issuance." (Pet. Exception at 32) In essence, Petitioners argue that the ALJ (by accepting District staff's analysis) improperly evaluated the -3 Modficiation request by limiting his review to the modified aspects of the permits that had been transferred to Sleepy
8 COLs 344, 394 and 395 contain the ALJ's ultimate conclusions that the -3 Modification meets all applicable District requirements and that Petitioners did not meet their burden of ultimate persuasion.
Creek.9 The ALJ's approach they argue "allows issuance [of a permit] without meeting the conditions of issuance contrary to section 373.223, Florida Statutes." (Pet. Exception at 32) They also contend, "the ALJ erred upon relying on ERP case law supporting an agency review limited to evaluation of the modified aspects in a permit modification application." (Pet. Exception at 33)
District staffs review of the -3 Modification was consistent with the statutes and District rules governing modifications of a consumptive use permit. Thus, the District rejects this exception except as clarified in this ruling and in the ruling on Petitioners' Exception 10.
COLs 291, 295, 290, 296 and 326 state as follows:
291. This case involves, in short, the consolidation of two existing CUPs (Nos. 2- 083-91926-2 and 2-083-3011-7) into a single permit, and modifies the proposed use from irrigation of a sod farm to pasture irrigation and associated minor uses for a cattle ranch. The proposed modification does not increase the permitted allocation, but rather changes the points of withdrawal and application from the East Tract to the East Tract and North Tract. The modification further extends the duration of the permit from its existing expiration in 2021 and 2024, to a date 20 years from the issuance of the modification, with a compliance report pursuant to section 373.236(4), to be submitted 10 years from the date of permit issuance.10
295. The permit modification was made by application meeting the criteria established in section 373.229, and will be the subject of a hearing before the governing board. The application was processed by the District using all relevant criteria established in rule 40C-2.301, and CUP A.H. chapters 9.0 and 10.0. The evidence established that the District assessed the individual and cumulative impacts of movement of the withdrawal locations from their existing permitted locations on the East Tract, to the modified locations on the East Tract and North Tract, the modification of use from a sod farm to a cattle ranch, and the effect of the extended permit term.
290. The scope of this proceeding is not in the nature of a challenge to the original
9 Before these proceedings commenced, Sleepy Creek was, and continues to be the holder of consumptive use permits 2-083-91926-2 and 2-083-3011-7 that authorize a combined
groundwater withdrawal of 1.46 mgd. (RO at ,r 8; Jt. Ex. 46 and 52)
10 To the extent this COL contains findings of fact, they are supported by competent substantial evidence. See, e.g., Jt. Ex. 1-52, 44; Stip. if 6, 8 ,9; T: 1232-1234; and RO FOF 159-191.
CUP. As noted by Judge J. Lawrence Johnston in a comparable proceeding involving the modification of an existing permit:
The test in this case is not whether the District properly evaluated the 2004 ERP, but whether the areas proposed to be modified or affected by the modification met the applicable conditions for issuance. When a permittee seeks to modify an existing permit, the District's review includes only that portion of the existing permit that is proposed to be modified or is affected by the modification..
. . The "reasonable assurance" requirement applies to the activities for which permitting is presently sought and, except to the extent affected by the proposed modification, does not burden the applicant with "providing 'reasonable assurances' anew with respect to the original permit." . . . Accordingly, Petitioner's arguments that certain criteria must be revisited because they were not properly addressed in previous permits is irrelevant to this proceeding; but previously-decided criteria must be reviewed again to the extent that proposed modifications affect those criteria. (internal citations omitted).
Conservancy of S.W. Fla. v. G.L. Homes of Naples Assoc. II, Ltd. and So. Fla. Water Mgmt. Dist., Case No. 06-4922 (DOAH May 15, 2007; SFWMD July 18, 2007). Thus, as to the CUP modification, this proceeding is limited to determining whether Sleepy Creek has provided reasonable assurance that the modifications authorized by Consumptive Use Permit No. 2-083-91926-3 meet applicable standards.
296. Based on the foregoing, the application, processing, and proposed agency action on the application as a modification of the existing CUPs was appropriate and consistent with the procedures established by statute and District rule.
326. Most of the evidence in this proceeding, and consequently many of the findings made herein, address the extent to which the proposed withdrawals will adversely affect water quality, water quantity, and the environmental effects of both. The evidence led the undersigned to find that the proposed use would have, at most, de minimus to undetectable impacts to the surface waters and groundwater on and under the property or offsite, and would not have an adverse impact on Silver Springs or the Silver River.
The modification of consumptive use permits is governed by section 373.239, F.S., and District Rule 40C-2.331, Florida Administrative Code, and section 11.1 of the CUP Applicant's
Handbook. Section 373.239 entitled "Modification and renewal of permit terms" is a procedural
,
statute11
and provides:
A permittee may seek modification of any terms of an unexpired permit.
If the proposed modification involves water use of 100,000 gallons or more per day, the application shall be treated under the provisions of s. 373.229 in the same manner as the initial permit application. Otherwise, the governing board or the department may at its discretion approve the proposed modification without a hearing, provided the permittee establishes that:
A change in conditions has resulted in the water allowed under the permit becoming inadequate for the permittee's need, or
The proposed modification would result in a more efficient utilization of water than is possible under the existing permit.
All permit renewal applications shall be treated under this part in the same manner as the initial permit application.
Rule 40C-2.331, which implements section 373.239, allows a permittee to request a modification of its consumptive use permit by letter that describes the proposed modification. However, certain requests for modification must be requested by filing an application on the appropriate District form and may not be made by letter. These type of requests include:
Requests to increase the duration of the consumptive use authorization (40C- 2.331(1)(c)l. ), and
Requests to change the location(s) of withdrawal point(s), unless the change: (a) Is for the relocation of withdrawal point(s) to a source of reclaimed water or water from a man-made surface water management system, or is for the relocation of a proposed well or replacement of an existing well meeting certain requirements. (40C-2.331(1)(c)7.)
As required by rule 40C-2.331(2), Sleepy Creek submitted its request for the -3 Permit Modification by application on District form 40C-2-1082-1. (Jt. Ex. 2).
11 See Southwest Fla. Water Mgmt. Dist. v. Charlotte County, 774 So. 2d 903, 912-913 (Fla. 2d DCA 2001) (noting that "the use of the term 'in the same manner' as used in section 373.239(3) has an understood meaning in Florida as being in the same procedural manner." (citations omitted))
Section 11.1 of the CUP Applicant's Handbook entitled "Modification to an Existing Permit" states:
Each application for modification to an existing permit will be eYaluated using the criteria listed in Section 9.0 above (see also 40C-2.301(2)). The proposed modification must be for a reasonable-beneficial use, it must not interfere with presently existing legal uses, and it must be in the public interest. Likewise it must not result in any of the conditions which are listed as reasons for recommendations of denial (see section 9.4 above as well as 40C-2.301(5)(a)).
There is no dispute that Sleepy Creek submitted the request in the proper form. Petitioners' disagreement is with both the determination that Sleepy Creek's request constitutes a request for modification and the way in which the ALJ applied the conditions for issuance to Sleepy Creek's request. Specifically, they argue in this exception:
First, the ALJ accepted Staffs contention the Sequence 3 application was to modify an existing use... Further, any use during the proposed CUP's extended duration is a new use that has never been evaluated.
The District's approach to Sleepy Creek's Sequence 3 application considered two aspects of the CUP application, the relocation of the withdrawals and the extension of the duration to 2034 [T:1321] However, for the period of extension there has never been a full review of the Conditions for Issuance. This allows issuance without meeting the Conditions for Issuance, contrary to Section 373.223, Florida Statutes.
(Pet. Exception at 31 and 32).
Relocation of Withdrawals
Petitioners' reference to the transcript, "[T: 1321]", is to testimony explaining how District staff evaluated the permitting criterion of whether Sleepy Creek had reduced potential environmental harm to Silver Springs from its modified water use to an acceptable amount in its request for the -3 Pennit Modification.
Rule 40C-2.301(4) states in pertinent part:
The following criteria must be met in order for a use to be considered reasonable-beneficial:
(d) The environmental harm . . . caused by the consumptive use must be reduced to an acceptable amount.
To determine whether this criterion had been met with regard to harm to Silver Springs, District staff considered the effect of the existing permitted water uses (authorized through 2021 and 2024) on Silver Springs and then compared how the proposed relocation of water withdrawal points (wells) would impact Silver Springs. (T: 1320-1321) The ALJ found "[a]s a result of the relocation of the extraction wells from the East Tract to the North Tract, the NCF model run at the 1.54 mgd withdrawal rate predicted springflow at Silver Springs to increase by 0.15 cfs." (RO at ,r 188) See also RO at ,r 283 (finding that "the preponderance of the evidence suggests that the existing permitted use would have greater impacts on the water levels at Silver
Springs.") These findings are supported by competent substantial evidence in the record (Jt. Ex. 23, 24 and 44; T: 658) and the ALJ concluded, based in part on this finding, that the environmental harm of Sleepy Creek's modified consumptive use to Silver Springs had been reduced to an acceptable amount.
Petitioners appear to argue that, in applying this permitting criterion as it relates to Silver Springs and the -3 Modification, District staff should have ignored the net effect of relocation of Sleepy Creek's existing consumptive use authorization on Silver Springs, and focused only on the absolute effect of withdrawing water from the wells to be relocated to the North Tract on the spring. If the ALJ had done so, Petitioners appear to suggest, he would or should have recommended denial of the -3 Modification given the reduced flow of Silver Springs and other concerns about the spring's condition.
Under the facts as found by the ALJ, his conclusion that this permitting criterion as it relates to Silver Springs and the -3 Modification has been met was reasonable. Rule 40C-2.331,
which has not been ·challenged in this proceeding, clearly contemplates that a consumptive use permit may be modified by relocating withdrawal points, and the rule does not specify that, to be considered a modification, such relocation must be on property within the original permit's project area. Further, in considering whether the environmental harm to Silver Springs of Sleepy Creek's modified consumptive use associated with the proposed relocation of wells has been reduced to an acceptable amount, it was reasonable· for the ALJ to consider the effect of such relocation to the North Tract as compared to the effect of the existing permitted use on the East Tract. See Friends of the Everglades, Inc. v. State Dep't of Envtl. Reg., 496 So. 2d 181, 183 (Fla. 1st DCA 1986) (holding DER's interpretation of rule with regard to dredge and fill permit modification was permissible where DER's review of permitting criteria focused on activity for which modification was sought, and modification sought would result in improvement of water quality.)
Under Petitioners' view of this rule criterion, the District would be obliged to deny the permit modification when the relocation, based on the credited evidence, is anticipated to have a positive effect on Silver Springs, and where denial would result in continued authorization of a consumptive use that has a greater impact on Silver Springs than the modified use that they would have the District deny. The District will not interpret its rules in a manner that leads to an outlandish result. See, e.g., Larimore v. State, 2 So. 3d 101 (Fla. 2008), as revised on denial of rehearing (2009) (affirming "[a] court is compelled to interpret a statute so as to avoid a construction that would result in unreasonable, harsh, or absurd consequences." (citation omitted)).
Additionally, under Petitioners' view, with regard to persons or entities (who hold a valid consumptive use permit), the burden of addressing the existing harm to a water resource from
currently authorized consumptive uses would arbitrarily fall on those permittees that first seek a permit modification after the District determines that such harm has occurred -- without any regard to their proportionate impact on the resource.12 While the Model Water Code and its commentary, cited by Petitioners, are used by the District and courts as a primary source of legislative intent for the Florida Water Resources Act, Chapter 373 and the State's water resource implementation rule13 now include specific provisions, addressing the recovery of such water resources, that were not included in the code.14 These more recent provisions contemplate phasing and timetables for prevention or recovery, with development of additional water supplies and implementation of conservation and efficiency measures occurring "concurrent with, to the extent practical, and to offset reductions in permitted withdrawals." See §373.0421(2)(b), Fla.
12 In FOF 72, the ALJ found "[t]here are currently no minimum flows and levels established by the District for the Silver River." (RO at ,r 72) Thus, this discussion is only a general comment on the approach that Petitioners advocate.
13The water resource implementation rule, adopted by the Department of Environmental Protection (DEP), sets forth for the water management districts "goals, objectiYes, and guidance for the development and review of programs, rules, and plans relating to water resources, based on statutory policies and directives" and is used by DEP to determine whether proposed district rules are consistent with Chapter 373. See §373.016(25), Fla. Stat. The legislature must ratify amendments to the rule before they can become effective. See §373.036, Fla. Stat. However, it does not contain permitting criteria except as they are incorporated by reference in the District's consumptive use permitting rules. See Fla. Admin. Code R. 62-40.110(4).
14 The Model Water Code does contain a section entitled "Declaration of Water Shortage" under which a governing board, by regulation, would "formulate a plan for implementation during periods of water shortage" and "may declare that a water shortage exists within all or part of the district when ... conditions are such as to require temporary reduction in total water use within the area to protect water resources from serious harm." (emphasis added) See F. Maloney, et al, A Model Water Code, §2.09 - Declaration of Water Shortage (1972). A very similar version of these provisions was adopted by the Florida Legislature in sections 373.246 and 373.175, F.S., as part of the 1972 Water Resources Act, and these statutes continue to be water management tools available to the District. However, even these tools generally do not contemplate the approach that Petitioners appear to be advocating.
Stat. (2014); Fla. Admin. Code R. 62-40.473(6). Equally significant, the water resource implementation rule requires that:
After the effective date of this rule, recovery and prevention strategies shall be developed as follows:
At the time the minimum flow or level is initially adopted, if the water body is below or is projected to fall within 20 years below, the initial minimum flow or level, the District shall simultaneously approve the recovery or prevention strategy required by Section 373.0421(2), F.S.1s
These statutory and rule provisions do not support Petitioners' approach which would require the District to categorically eliminate on a "first-come, first-served basis" existing authorized consumptive uses where the permittee seeks modification of an unexpired permit, and the proposed modification - based on the best information then aYailable -- addresses the permittee's proportional impact on a water resource that has been significantly harmed by currently authorized consumptive uses. If additional measures are necessary to recover the water resource, the current statutory scheme contemplates that these would be included in the relevant recovery strategy. Nevertheless, if unanticipated significant adverse impacts to water resources (e.g. spring flows) from a permittee's modified use occur, the District by permit condition has the ability to revoke the permit in whole or in part to curtail or abate such adverse impacts. See Fla. Admin. Code R. 40C-2.381(entitled "Limiting conditions")
11. Duration
Petitioners contend that the District's approval of a 20-year duration for the -3 Modification would be contrary to chapter 373.223, F.S. (Pet. Exception at 32) As explained above in the ruling on this exception, the analysis of how the relocation of withdrawal points would impact Silver Springs was a reasonable application of rule 40C-2.301(4)(d), F.A.C. The
15 This rule provision became effective on May 6, 2013.
ALJ concluded that the evidence was sufficient to provide reasonable assurance for a duration of 20 years because Sleepy Creek will -- through relocation of withdrawal points -- address its modified consumptive use's proportional impact on Silver Springs. Specifically, COL 295 states in pertinent part:
The evidence established that the District assessed the individual and cumulative impacts of movement of the withdrawal locations from their existing permitted locations on the East Tract, to the modified locations on the East Tract and North Tract, the modification of use from a sod farm to a cattle ranch, and the effect of the extended permit term. (emphasis added)
Based on the evidence, the ALJ's recommendation is for the District to issue the -3 Permit Modification "on the terms and conditions set forth in the Consumptive Use Technical Staff Report [TSR]" (Jt. Ex. 44) The conditions in the TSR include:
2. Nothing in this permit should be construed to limit the authority of the St. Johns River Water Management District to declare a water shortage and issue orders pursuant to Section 373.175, Florida Statutes, or to formulate a plan for implementation during periods of water shortage, pursuant to Section 373.246, Florida Statutes. In the event a water shortage is declared by the District Governing Board, the permittee must adhere to the water shortage restrictions as specified by the District, even though the specified water shortage restrictions may be inconsistent with the terms and conditions of this permit .
9. This permit will expire on June 10, 2034.
19. The permittee's consumptive use shall not adversely impact wetlands, lakes, and spring flows or contribute to a violation of minimum flows and levels adopted in Chapter 40C-8, F.A.C., except as authorized by SJRWMD-approved minimum flow or level (MFL) recovery strategy. If unanticipated significant adverse impacts occur, the SJRWMD shall revoke the permit in whole or in part to curtail or abate the adverse impacts, unless the impacts are mitigated by the permittee pursuant to a District-approved plan.
23. The permittee shall submit to the District a compliance report pursuant to subsection 373.236(4), Florida Statutes, ten years from the date of issuance of this permit. Specifically, the compliance report shall be submitted by June 10, 2024. This report shall contain sufficient information to demonstrate that the permittee's use of water will continue, for the remaining duration of the permit, to meet the conditions for issuance set forth in the District's rules that existed at the time the
permit was issued for 20 years by the District. At a minimum, the compliance report must:
Meet the submittal requirements of section 4.2 of the Applicant's Handbook: Consumptive Uses ofWater, September 16, 2012;
Verify that the permittee is using all available lowest quality sources of water to supply the needs of the project; and
Demonstrate that the allocation is needed for efficient water use.
Based on the ALJ's :findings and conclusions and in light of these conditions, the District concludes that reasonable assurance has been provided that the -3 Permit Modification should be granted for the duration recommended by the AU.
Public Interest
On the bases identified in a. above, Petitioners also take exception to COLs 314, 315, and 346 that relate to the public interest test under the reasonable-beneficial prong and the public interest prong of the 3-part test for a consumptive use permit. Petitioners do not explain how the ALJ's alleged truncated review affected these COLs, and thus do not state a valid basis for the exception under 120.57(1)(k), F.S. Accordingly, the District need not rule on this exception with regard to these conclusions.
COLs 314,315, and 346 state as follows:
Rule 40C-2.301(4){b) and CUP A.H. Section 10.3{b)
The preponderance of the evidence in this case demonstrates that the proposed use of water by Sleepy Creek is reasonable and consistent with the public interest.
The agricultural use proposed for the water extraction is of the type generally recognized to be of "economic significance and importance." Harloff v. City of Sarasota, 575 So. 2d 1324, 1326 (Fla. 2d DCA 1991).
The third "prong" of the three-pronged test established in section 373.223(1) provides that the use of water proposed by a consumptive use permit must be consistent with the public interest. For the reasons set forth in paragraphs 314
through 323 above, and for the reasons set forth herein, the undersigned concludes that the water use proposed by the Sleepy Creek CUP modification is consistent with the public interest.
As concluded above, the ALJ's and District staffs evaluation of the modification was not truncated and was consistent with the statute and District rules governing modifications.
Lowering of the Water Table
Petitioners also take exception to COLs 347 - 349 that relate to the permitting criterion that a consumptive use permit must be denied if a consumptive use of water will "cause the water table or surface water to be lowered so that stages or vegetation will be adversely and significantly affected on land other than those owned, leased or otherwise controlled by the applicant." See Fla. Admin. Code R. 40C-2.301(5)(a)2.
COLs 347 - 349 state as follows:
Petitioners have asserted that the CUP modification would violate rule 40C- 2.301(5)(a)2., which provides that a proposed consumptive use does not meet the criteria for the issuance of a permit if such proposed water use will cause the water table or surface water to be lowered so that stages or vegetation will be adversely and significantly affected on off-site properties.
The evidence introduced at the final hearing demonstrates that there will be insignificant impacts to the hydrologic regime of wetlands either on or off of the Sleepy Creek property, or to the levels of the surficial aquifer such that any surface water feature would experience a change in stage elevation. There was insufficient evidence to support a finding that vegetation will be adversely and significantly affected on off-site properties.
For the reasons set forth herein, Petitioners failed to prove by a preponderance of competent and substantial evidence that the Sleepy Creek proposed use will cause the water table or surface water level to be lowered so as to result in adverse or significant affects to off-site properties.
Petitioners do not explain how District staff's alleged truncated review affected these COLs and thus do not state a valid basis for the exception under 120.57(1)(k), F.S. NeYertheless, the record reflects that the evaluation of impacts to wetlands and other surface waters included
consideration of groundwater flow modeling, site visits, aerial photography and the results of an aquifer performance ·test conducted on the North Tract to detennine that the impacts of withdrawing 1.46 mgd as proposed in the modification would not violate the basis for denial in rule 40C-2.301(5)(a)2., F.A.C. (Jt. Ex. 44:14, T: 1299-1300).
d. FOFs
Petitioners take exception to FOFs 32, 33, and 170-191 on the grounds that "the hearing process was not consistent with the essential requirements of law." (Pet. Exception at 34) Because the instant proceeding does not fall into the category of an extreme case that violates section 120.57(1)(1),F.S., this exception is rejected. Moreover, Petitioners have not alleged that findings of fact in these paragraphs are not supported by competent substantial evidence which they are. (T: 786-789, 802, 803, 982-983, 1121, 1122, 1123, 1137, 1138; Jt. Exs. 23, 24, 44:
Figure 4A, 5A and 6A) To the extent these paragraphs contain conclusions of law, Petitioners have not explained how the errors they allege in this exception affected these conclusions.
Petitioners' Exception No. 4
Petitioners take exception to FOF 283 and COLs 290-291, 296, 323, 338-339, 344, and 346 on two grounds. Petitioners contend that (1) the "hearing process was not consistent with the essential requirements of law" and (2) the AU erred by accepting "District staffs position that the predevelopment condition [of the North Tract] was improved pasture." (Pet. Exception at 37). For the reasons below, the exception is rejected.
Findings of fact FOF 283 states as follows:
283. If the CUP modification is denied, the existing CUP will continue to allow the extraction of 1.46 mgd for use on the East Tract. The preponderance of the evidence suggests that such a use would have greater impacts on the water levels at Silver Springs, and that the continued use of the East Tract as a less stringently-
controlled sod farm would have a greater likelihood of higher nutrient levels, particularly phosphorus levels which are already elevated.
The record contains competent substantial evidence to support the above finding of fact. (T: 607, 608, 658; Jt. Ex. 23, 24 and 44) In this exception, Petitioners have not demonstrated that the extreme circumstances contemplated by the statute for rejecting or modifying a finding of fact that is supported by competent substantial evidence has been met.
Conclusions oflaw
As to the first grounds, and as explained above, under the heading "Essential requirements of the law," only findings of fact may be excepted to on the grounds that the proceeding on which the findings were based did not comply with the essential requirements of law. See §120.57(1)(1), Fla. Stat. Thus, to the extent Petitioners direct the first grounds of this exception at conclusions of law, the exception does not state a valid basis as required by section 120.57(1)(k), F.S., and the District need not provide a ruling on this portion of the exception. With regard to the second grounds, it is clear from the exception that Petitioners direct this exception at the determination of the predevelopment condition as it relates to environmental resource permitting requirements, which apply only to the ERP application, not the consumptive use application. Moreover, Petitioners have not explained how the errors they allege in this exception affected these COLs.
Petitioners' Exception No. 5
Petitioners take exception to 3 FOFs and 13 COLS on two grounds.16 Petitioners contend that (1) the "hearing process was not consistent with the essential requirements of law" and (2) the ALJ erred by concluding Sleepy Creek's implementation of best management practices
16 The FOFs are: 111, 116, and 131. The COLs are: 322-323, 326-327, 338-339, 341-342, 344,
346, 348, and 394-395.
(BMPs) for cow/calf operations provided Sleepy Creek a ''presumption" of compliance with water quality standards. (Pet. Exception at 37-38).
FOP 116
FOP 116 and endnote 2 read as follows:
116. Sleepy Creek has entered into a Notice of Intent to Implement Water Quality BMPs with the Florida Department of Agriculture and Consumer Services which is incorporated in the NMP and which requires the implementation of Best Management Practices.2,- Dr. Bottcher testified that implementation and compliance with the Water Quality Best Management Practices manual creates a presumption of compliance with water quality standards. His testimony in that regard is consistent with Department of Agriculture and Consumer Services rule SM-11.003 ("implementation, in accordance with adopted rules, of BMPs that have been verified by the Florida Department of Environmental Protection as effective in reducing target pollutants provides a presumption of compliance with state water quality standards.").
EN2/ The Department of Agriculture and Consumer Services BMP manual is specifically for cow/calf operations. However, the testimony in this case was persuasive that nutrient loading for grass-fed beef production is substantially lower than that for cow/calf production. Thus, compliance with the BMPs for cow/calf operations will meet the presumption of compliance with water quality standards.
The District agrees that the ALJ's conclusion that Sleepy Creek's compliance and implementation with BMPs for cow/calf operations will meet the presumption of compliance with water quality standards and that such a presumption "is consistent with Department of Agriculture and Consumer Services rule 5M-11.003" is not supported by competent substantial evidence.
The BMPs found in rule 5M-11.003 of the Florida Administrative Code are for Florida cow/calf operations. The presumption of compliance with state water quality standards is provided only when "BMPs that have been verified by the Florida Department of Environmental
Protection as effective in reducing target pollutants ... " are implemented. See Fla. Admin. Code R.5M-11.003; see also§ 403.067(7)(c)(3), Fla. Stat.
The Department of Agriculture and Consumer Services has not verified BMPs for the type of grass-fed beef production proposed by Sleepy Creek; therefore, a presumption of compliance with water quality standards based on implementation of the cow/calf BMPs is not supported.
Thus, the District accepts this exception and rejects FOF 116 and endnote 2 for the reasons stated above. However, to the extent the Petitioners are arguing that the "presumption" afforded in FOF 116 was the sole basis for the ALJ concluding that ''the project would meet water quality standards," exception 5 is rejected. The Recommended Order contains other
findings of fact that support the ALJ's conclusion that the modified consumptive use will not cause or contribute to a water quality violation.17 (RO at ,r,r 15, 27, 44, 59, 111-115, 133-135,
143, 149-154, 156-158,225-259,264,272,277-279)
Remaining FOFs
Petitioners take exception to the findings in FOFs 111 and 131, which are supported by competent substantial evidence. (Jt. Exs. 28, 40, 44, 69; SC Ex. 201; T: 607-609, 1142-1144) As ruled previously, the proceedings in this matter were not conducted in a manner so extreme that constitutes a departure from the essential requirements of law, and Petitioners in this exception have not alleged circumstances so extreme they would constitute such a departure. Therefore, the exception is rejected with regard to these findings of fact.
Conclusions oflaw
17 The issuance of the ERP establishes that rule 40C-2.301(1)(k), F.A.C., and section 10.3(k), CUP A.H., have been met for the water use on the North Tract.
Petitioners take exception to COLs 322, 323, 326, 327,338,339, 341, 342, 344, 346, 348 and 394-395. As explained above, under the heading "Essential requirements of law," only findings of fact may be excepted to on the grounds that the proceeding on which the findings were based did not comply with the essential requirements oflaw. See §120.57(1)(1), Fla. Stat. Thus, to the extent Petitioners direct the first grounds of this exception at conclusions of law, the exception does not state a valid basis as required by section 120.57(1)(k), F.S., and the District need not provide a ruling on this portion of the exception.
With regard to the second grounds, Petitioners do not explain how FOF 116 affected conclusions and findings in these COLs.
Petitioners' Exception No. 6
Petitioners take exception to pages 8 and 9 of the Recommended Order and FOFs 53-60 and 195 on two grounds.18 Petitioners contend that (1) the "hearing process was not consistent with the essential requirements of the law" and (2) that "the ALJ failed to consider the Public Hearing evidence." (Pet. Exception at 45). For the reasons stated below, the exception is denied.
Public Comment
Petitioners argue that, ''the ALJ erred by failing to consider the Public Hearing testimony and evidence,19 instead passing it on to the Governing Board for their consideration without providing any findings or conclusions thereupon, and without synthesizing the Public Hearing
18 In their exception number 6, Petitioners take exception to findings of facts and conclusions of law related to the ERP and CUP applications. Specifically, Petitioners' exceptions to FOFs 53- 60, 195 and COL 376 relate all or in part to the ERP application and are addressed in the ERP Final Order.
19 Petitioners' argument is in reference to provisions of section 120.57(1)(b), F.S., which states, ''the general public may be given an opportunity to present oral or written communications." To the extent Petitioners refer to this opportunity as a "public hearing" and the oral and written communications as "testimony" and "evidence," it should be noted those terms are not used in the statute.
evidence with the balance of the evidentiary record." (Pet. Exception at 38) Petitioners' argument is based on statements made at pages 8 and 9 of the Recommended Order wherein the ALJ states:
[t]he District, through counsel, confirmed its intent to consider public comment at such time as it takes final agency action in this proceeding. Therefore, the members of the public who chose to speak were placed under oath, and all parties were given an opportunity to cross-examine them, or to challenge or rebut and materials submitted. . . . A transcript of the public comment period and copies of all documents and recordings are being provided to the District along with the record of this proceeding for the District's consideration.
(RO at 8-9)
These words are not dispositive that the ALJ ''passed" along the public comment and associated materials without consideration. In FOP 62, the ALJ specifically references the public comment by finding "[m]any of the speakers at the public comment period of this proceeding spoke fondly of having frequented Silver Springs over the years, enjoying its crystal
clear water through famous glass-bottomed boats." (RO at ,r 62) Additionally, the ALJ
considered the PROs filed in this matter. See RO at 9, (''the parties filed Proposed Recommended Orders ... which have been considered in the preparation of this Recommended Order.") Thus, to the extent the Petitioners themselves relied on public comment in their own
PROs and cited to the public comment materials, the ALJ considered those matters. See Ahlers PRO at ,r 161 and Florida Defenders of the Environment PRO at iM[ 33 through 43.
Section 120.57(l}(b), Fla. Stat. provides:
All parties shall have an opportunity to respond, to present evidence and argument on all issues involved, to conduct cross examination and submit rebuttal evidence, to submit proposed findings of fact, and orders, to file exceptions to the presiding officer's recommended order, and to be represented by counsel or other qualified representative. When appropriate, the general public may be given an opportunity to present oral or written communications. If the agency proposes to consider such material,
then all parties shall be given opportunity to cross-examine or challenge or rebut the material.
§120.57(1)(b), Fla. Stat.
The ALJ's decision to accept or consider such public comment is a procedural and evidentiary matter governed by statutes over which the District lacks substantive jurisdiction. Barfield v. Dep't of Health, 805 So. 2d 1008, 1012 (Fla. 1st DCA 2001) (the agency lacked jurisdiction to overturn an ALJ's evidentiary ruling); Lane v. Dep 't of Envtl. Protection, 29
F.A.L.R. 4063 (DEP 2007) (the agency has no substantive jurisdiction over procedural issues, such as whether an issue was properly raised, and over an ALJ's evidentiary rulings); Lardas v. Dep't of Envtl. Protection, 28 F.A.L.R. 3844, 3846 (DEP 2005) (evidentiary rulings of the ALJ concerning the admissibility and competency of evidence are not matters within the agency's substantive jurisdiction).
The standard of review does not allow the District to add facts or change findings of fact that are supported by competent substantial evidence, consider evidence not presented at hearing, reevaluate the quantity and quality of evidence presented in the hearing, or change the ALJ's evidentiary and procedural rulings. See section B.I. supra.
Karst Features
Petitioners argue that the ALJ's failure to consider the "Public Hearing evidence" caused errors to FOFs 53-60 and 195, relating to karst features on the project site. As discussed above, there is no definitive indication the ALJ did not consider the oral or written communications provided during the public comment and any error in procedure or evidentiary rulings is outside the District's substantive jurisdiction. Petitioners have not alleged that the findings of fact to which they have taken exception are not supported by competent substantial evidence.
Finally, the conduct of these proceedings does not fall within the category of an extreme case that violates section 120.57(1)(1), F.S.
Petitioners' Exception No. 7
Petitioners take exception to FOF 116 and COLs 321-323, 326, 338-339, 341-342, 344, 346, 394, and 395 on two grounds. Petitioners argue (1) "the hearing process was not consistent with the essential requirements of law" and (2) that the ALJ failed to "properly consider cumulative water quality impact evidence." (Pet. Exception at 47) The District rejected FOF 116 in its ruling on Petitioners' Exception No. 5. As discussed under the heading "Essential requirements of law," only findings of fact may be excepted to on the grounds the proceedings on which the findings were based did not comply with essential requirements of law. See
§120.57(1)(1), Fla. Stat. Thus, to the extent Petitioners direct the grounds of this exception at conclusions oflaw, the exception does not state a valid basis as required by section 120.57(1)(k), F.S., and the District need not provide a ruling on this portion of this exception.
With regard to the second grounds, Petitioners have not explained how the errors they allege in this exception affected COLs directed at the modified consumptive use permit. It is, however, clear from the exception that Petitioners' argument is directed at "cumulative water quality evidence" as it relates to the North Tract. (Pet. Exception at 47).20 Their argument is addressed in the District's final order on the environmental resource permit, issuance of which establishes that the criterion in CUP A.H. 10.3(k) is met with regard to consumptive use on the North Tract.
20 Petitioners rely on FOF 276-279 to support their argument.
Petitioners' Exception No.·s
Petitioners take exception to 13 COLs and 13 FOFs on two grounds. They contend: (1) ''the hearing process was not consistent with the essential requirements of law," and (2) the ALJ failed to "correctly analyze cumulative impacts regarding water quantity."21 (Pet. Exception at 48 and 50) As explained above under the heading "Essential requirements oflaw," only findings of fact may be excepted to on the grounds that the proceedings on which the findings were based did not comply with essential requirements of law. See §120.57(1)(1), Fla. Stat. Thus, to the extent that the first grounds of this exception is directed at conclusions oflaw, the exception does not state a valid basis as required by section 120.57(1)(k), F.S., and the District need not proYide a ruling on this portion of the exception. For the reasons below, the District denies the remainder of the exception.
Petitioners' exception to FOFs 181-183, 187-189, 191, 204, 214-216, 295 and 296 is mostly an effort to re-argue the evidence. All of the findings of fact in these paragraphs relate to modeling results and are supported by competent substantial eYidence.22 To the extent that Petitioners contend that: (1) the ALJ erred in not considering the impact of the -4 permit application by not consolidating their petitions regarding the -3 Modification and -4 application in a single proceeding; or (2) by excluding evidence regarding the -4 permit application, their exception is addressed in the ruling on Exceptions No. 1 and 2, respectively. The proceedings in this case did not create, and the Petitioners in this exception have not alleged, circumstances so extreme as to constitute a departure from the essential requirements of law.
21 The COLs are: 312,313,321,322,326,344,346,348,349,390,391,394 and 395.
22 See, e.g., Jt. Ex. 23, 24, 37, 38, 44; Pet. Ex. 151; T: 497,498, 788, 918, 1232, 1224, 1323, and
1324.
Part of Petitioners' argument that the Al.J failed to "correctly analyze cumulative impacts regarding water quantity" focuses on the amount of actual water use on the East Tract, which has historically been lower than the amount of permitted use. This part of their argument ignores that Sleepy Creek -- before the commencement of this proceeding -- was the holder of the permits authorizing a combined withdrawal of 1.46 mgd and, as such, without further action from the District, could use the full allocation of these permits albeit for a different use (sod production) at a different location. (RO at 8; Dist. Ex. 48, 52) To the extent that Petitioners' exception questions the scope of the review used to evaluate the -3 Modification, it is addressed by the District's ruling on Exception No. 3.
Petitioners' Exception No. 9
Petitioners take exception to 23 COLs and 27 FOFs on two grounds. 23 They contend:
"the hearing process was not consistent with the essential requirements oflaw," and (2) the ALJ failed to "consider the additional Sequence 4 water withdrawals as secondary of the Sequence 3 withdrawals on the North Tract." (Pet. Exception at 52 and 53) As explained above under the heading "Essential requirements of law," only findings of fact may be excepted to on the grounds that the proceedings on which the findings were based did not comply with essential requirements oflaw. See § 120.57(1)(1), Fla. Stat. Thus, to the extent that the first grounds of this exception is directed at conclusions of law, the exception does not state a valid basis as required by section 120.57(1)(k), F.S., and the District need not provide a ruling on this portion of the exception. For the reasons below, the District denies the remainder of the exception.
23 The COLs are: 290, 291, 295, 296, 298, 312, 313, 314,315, 321,323, 326, 327, 338, 339, 342,
344, 346, 348, 349, 391, 394 and 395.
Petitioners take exception to FOFs 8-10, 23, 170-172, 174-189, 191, 212, 257, and 267. All of the findings of fact in these paragraphs are supported by competent substantial evidence. (Stip: 6-7; Jt. Ex. 23; 24; 44; 47; 48; 51; and 52; Figure 7A, 8A, and 9A; T. 238,480,481,497,
498, 657, 786, 789, 802, 803, 1075, 1076, 1232, 1233, 1234, 1323, and 1324; Dist. Ex. 170). As
ruled previously, the proceedings in this matter were not conducted in a manner so extreme that constitutes a departure from the essential requirements of law, and Petitioners in this exception have not alleged circumstances so extreme they would constitute such a departure. Accordingly, the exception is rejected with regard to these FOFs.
To support their argument on the second grounds -- that the District should have considered the sequence 4 application's predicted water resource impacts "in the determination of the secondary impacts of the sequence 3 [consumptive use permit] application" -- Petitioners cite to ERP A.H. Vol. I § 10.2.7(d). This section of the ERP applicant's handbook relates to secondary impacts to wetlands and other surface waters when considering a proposed project under the District's environmental resource permitting rules. As pointed out by District staff, this criterion is an ERP criterion and is not a CUP criterion in chapter 40C-2, F.A.C., the CUP Applicant's Handbook or Part II of Chapter 373.
Notably, Section 10.2.7(a), another part of the secondary impacts criterion states in pertinent part:
Impacts of groundwater withdrawals upon wetlands and other surface waters that result from the use of wells permitted pursuant to the District consumptive use rules shall not be considered under the rules adopted pursuant to Part IV of Chapter 373, F.S.
(AH Vol. I §10.2.7(a))
Thus, the District could also not have considered the sequence 4 application's predicted water resource impacts in its evaluation of the ERP application, approval of which allows the applicant
to receive a presumption of compliance with District rule 40C-2.301(4)(k), F.A.C., with regard to the withdrawals on the North Tract portion of the -3 Modification.
Petitioners' Exception No. 10
Petitioners take exception to FOFs 280-283 and COLs 314, 316, 320-323, 346 and 394- 397 on the grounds that "the hearing process was not consistent with the essential requirements of law." (Pet. Exception at 55) In addition, Petitioners assert that the "Recommended Order's analysis of consistency with the public interest recognizes some of the applicable law but misapplies it." (Pet. Exception at 53) To the extent that Petitioners request the District to reject or modify conclusions of law on the basis that the hearing process was not consistent with the essential requirements of law, they have not stated a valid basis as required by section 120.57(l)(k), F.S. The District denies the exception except as clarified in this ruling.
Findings of Fact
FOFs 280-283 state as follows:
The primary basis upon which Sleepy Creek relies to demonstrate that the CUP is "consistent with the public interest" is that Florida's economy is highly dependent upon agricultural operations in terms of jobs and economic development, and that there is a necessity of food production.
Sleepy Creek could raise cattle on the property using the agriculturally exempt improved pastures, but the economic return on the investment would be questionable without the increased quality, quantity, and reliability of grass and forage crop production resulting from the proposed irrigation.
Sleepy Creek will continue to engage in agricultural activities on its properties if the CUP modification is denied. Although a typical Florida beef operation could be maintained on the property, the investment was based upon having the revenue generation allowed by grass-fed beef production in order to realize a return on its capital investment and to optimize the economic return.
If the CUP modification is denied, the existing CUP will continue to allow the extraction of 1.46 mgd for use on the East Tract. The preponderance of the evidence suggests that such a use would have greater impacts on the
water levels at Silver Springs, and that the continued use of the East Tract as a less stringently-controlled sod farm would have a greaterHkelihood of higher nutrient levels, particularly phosphorus levels which are already elevated.
The record contains competent substantial evidence to support the above findings and conclusions. (T: 587, 588, 589,590,607,608,626,628; Jt. Ex. 23, 24 and 44) In this exception, Petitioners have not demonstrated that the extreme circumstances contemplated by the statute for rejecting or modifying a finding of fact that is supported by competent substantial evidence has been met. Therefore, this exception is rejected with regard to these findings of fact.
Public Interest under First {Reasonable-Beneficial} and Third {Public Interest} Prongs
of 373.223{1), F.S.
COLs 314,316 and 320-323 are under the heading "Rule 40C-2.301(4)(b) and CUP A.H. Section 10.3(b)" and state as follows:
314. The preponderance of the evidence in this case demonstrates that the proposed use of water by Sleepy Creek is reasonable and consistent with the public interest.
316. Although Sleepy Creek could operate a typical Florida cattle ranch on the property without irrigation, such a use would entail shipping calves to the mid west for fattening, slaughter, and processing, thus eliminating the benefits of those activities to the Florida job-market and economy. Although there was no evidence of the number of full-time and part-time jobs that would be necessary to support the grass-fed beef production and processing operation, the undersigned can reasonably infer that the number of jobs will be substantial.
As set forth in paragraph 32 above, the baseline conditions are those that existed at the time of the permit application, including the effects of previously permitted withdrawals. West Coast Reg'l Water Supply Auth. Y. Southwest Fla. Water Mgmt. Dist., Case No. 95-1520 et seq.,, 301 (Fla. DOAH May 29, 1997; SFWMD ).24
24 The case cited in FOF 32 and COL 320 was a Recommended Order, and no Final Order was ever issued on that Recommended Order. West Coast Reg'l Water Supply Auth. v. SW Fla. Water Mgmt. Distr., 1997 WL 1052355,, 301 (Fla. DOAH Case No. 95-1520, May 29, 1997).
That case was apparently resolved by a Settlement Agreement filed with DOAH on April 2, 1999. (See Docket for DOAH Case No. 95-1520.) Thus, the precedential value of this case appears limited.
The question as to whether the CUP meets the public interest test is also influenced by the fact that the proposed agency action is a modification of an existing use, i.e., sod farm irrigation, that is not entirely dissimilar from the proposed use, i.e., pasture grass and forage crop irrigation. The preponderance of the evidence demonstrates that the relocation of points of extraction from the East Tract to the North Tract will have a beneficial effect on the flow of Silver Springs, and will have little or no impact to surface water or groundwater quality.
The preponderance of the evidence in this proceeding supports a conclusion that the water use proposed by Sleepy Creek is efficient, that Sleepy Creek demonstrated a need for the water requested and the legitimacy of the purpose for the use, and that the proposed use will not harm the water resources of the District.
For the reasons set forth herein, Petitioners failed to prove by a preponderance of competent and substantial evidence that the proposed use of water is not consistent with the public interest.
COL 346, under the heading "Section 373.223(1)(c) - Consistent with the Public Interest," states:
346. The third "prong" of the three-pronged test established in section 373.223(1) provides that the use of water proposed by a consumptive use permit must be consistent with the public interest. For the reasons set forth in paragraphs 314 through 323 above, and for the reasons set forth herein, the undersigned concludes that the water use proposed by the Sleepy Creek CUP modification is consistent with the public interest.
1. Conflation of Public Interest Tests
COLs 314, 316 and 320-323 relate to the criteria in Rule 40C-2.301(4)(b), F.A.C., and CUP A.H. section 10.3(b). These rules provide in pertinent part as follows:
40C-2.301(4)(b) - The following criteria must be met in order for a use to be considered reasonable-beneficial: . . .
(b) The use must be for a purpose that is both reasonable and consistent with the public interest.
10.3 Reasonable-Beneficial Use Criteria
... [T]he Governing Board has determined that the following criteria must be met in order for a use to be considered reasonable beneficial: . . . (b) The use must be for a purpose which both reasonable and consistent with the public interest.
The term "reasonable-beneficial use" is defined as "the use of water in such quantity as is necessary for economic and efficient utilization for a purpose and in a manner which is both reasonable and consistent with the public interest." See § 373.019(16), Fla. Stat. As the District has ruled previously, the term "consistent with the public interest in the definition of reasonable beneficial use contained in the first prong of section 373.223(1)(a), F.S." does not have the same meaning as the term "consistent with the public interest in the third prong of section 373.223(1)(c), F.S." City of Groveland v. Niagara Bottling Co. and St. Johns River Water Management District, Case No. 08-4201 (Fla. DOAH Aug. 7, 2009; SJRWMD Sept. 28, 2009) at 37-39. To the extent COL 346 may be read to suggest that the two tests are synonymous, the District reaffirms they are not. The factors considered under the two tests may overlap. Id. at 38.
Consideration of non-water resource related Matters
In applying the public interest tests under rule 40C-2.301(4)(b), F.A.C., and section 373.223(1)(c), F.S., the District's review is limited to water resource related considerations. Id. at 25. Thus, the District considers the findings in paragraphs 281,282 and 316 only to the extent that they establish whether Sleepy Creek's consumptive use of water is for a legitimate purpose.
The District is a creature of statute and its powers are those expressed in statutory language, or necessarily implied from expressed language, and its powers are not conferred by the absence of language. Id. The CUP program of Part II of Chapter 373 was enacted to accomplish the water resource conservation and protection policy goals of Chapter 373. The
permitting requirement is intended to regulate water uses to prevent harm to the water resources and ensure the use is consistent with the overall water resource objectives of the District. Reading Chapter 373 as a whole, the term "consistent with the public interest" as implemented by the District's rules is cabined by the purpose of Chapter 373 to address water resource related issues. See City of Sunrise v. South Florida Water Management District, 615 So. 2d 746, 747 (Fla. 4th DCA 1993)(holding that "[c]ompetitive economic considerations do not fall within the zone of protection that water management district is authorized to consider under chapter 373, Florida Statutes") and Marion County v. Greene and St. Johns River Water Management District, Case No. 6-2464 (Fla. DOAH Jan. 8, 2007, SJRWMD March 23, 2007) (determining "[n]owhere in the District's rule criteria is the amount of economic return a permittee receives from a water use made a test or factor in determining whether an applicant should be granted a permit or not.")
Remaining COLs
COLs 394 and 395 conclude that Petitioners did not meet their burden of ultimate persuasion with regard to the CUP and that Sleepy Creek has provided reasonable assurance to obtain a CUP from the District. These COLs are not affected by the District's ruling with regard to the scope of the public interest test and the exception with regard to these COLs is therefore denied.
Because they address the issuance of an ERP to Sleepy Creek, Petitioners' Exceptions to COLs 396 and 397 are addressed in a separate final order issuing the ERP.
Petitioners' Exception No. 11
In this general exception, Petitioners argue the ALJ committed reversible error "by refusing to continue the hearing beyond August 25, 2014." (Pet. Exception at 56) As a result,
Petitioners contend, "the hearing process was not consistent with the essential requirements of law, thus causing virtually all findings and conclusions to contain or be based upon the error." (Pet. Exception at 58) Petitioners state that they were not afforded sufficient time to adequately prepare for the administrative hearing. The Petitioners' exception does not identify any portion of the Recommended Order by page number or paragraph and therefore, the District need not provide a ruling on the exception. "An agency need not rule on an exception that does not clearly identify the disputed portion of the recommended order by page number or paragraph, that does not identify the legal basis for the exception, or that does not include appropriate and specific citations to the record." See §120.57(l)(k), Fla. Stat.
Nonetheless, a review of the record indicates that all parties to the proceeding represented to the ALJ they were available for hearing the weeks of August 18 and 25, 2014, and the hearing was initially set for August 18. Following issuance of Order setting the hearing, the Petitioners filed multiple motions for continuance. The initial joint motion, Petitioners' and Intervenor's Emergency Motion to Consolidate and for Continuance, was denied. Then, the Petitioners Sierra Club, Inc. and St. Johns Riverkeeper, Inc., filed a separate motion for continuance on June 25, 2014. After reviewing the motion and responses, the ALJ agreed to continue the case until the week of August 25.
The ALJ's decision to grant or deny Petitioners' motion for continuance is a procedural matter governed by Chapter 120, Florida Statutes, over which the District lacks substantive jurisdiction. Malave v. Dept. of Health, 881 So. 2d 682 (Fla. 5th DCA 2004) ("The decision to grant or deny a continuance of an administrative proceeding is a matter in the sound discretion of the administrative law judge."), Public Employees Relation Commission v. City of Lauderhill, Case No. 77-430 (June 29, 1977) (A motion for continuance is "entirely a ... procedural
matter."), Lane v. Dep't of Envtl. Protection, 29 F.A.L.R. 4063 (DEP 2007) (the agency has no substantive jurisdiction over procedural issues, such as whether an issue was properly raised, and over an ALJ's evidentiary rulings). Therefore, the District denies this exception.
RULINGS ON DISTRICT'S EXCEPTIONS25
District's Exception No. 4
District staff takes exception to FOF 11 on the basis that the FOF contains a scriyener's error. Based on a review of the record, there appears to be no competent substantial evidence for finding that Sleepy Creek calculated a water demand of 2.569 mgd for the production of grasses and forage crops necessary to meet the needs for grass-fed beef production. The District's exception is granted. In light of the statutes limiting the District's ability to make additional findings of fact, the FOF is modified to read:
Sleepy Creek calculated a water demand of 2.509 mgd for the production of grasses and forage crops necessary to meet the needs for grass-fed beef production based on the expected demand in a 2-in-10 year drought year.
District's Exception No. 5
District staff takes exception to COL 293 ''to the extent that this conclusion references rule 40C-2.331(2), F.A.C., as it was revised on August 14, 2014." (District Exception at 7) As set forth in the parties' Stipulation and in COL 305 "Sleepy Creek elected to have its CUP
application reviewed in accordance with the standards criteria and conditions in effect immediately prior to August 14, 2014." (Stip. ,r F.3)
As noted elsewhere in this order, 40C-2.331(2) includes standards for permit modifications. Since Sleepy Creek elected to use the "standards criteria and conditions" in effect
25 District staff's exceptions 1, 2, and 3 are directed at Environmental Resource Permit Application IND-083-130588-4 and, therefore, are not ruled upon in this order.
before August 14, 2014, the February 2, 2012 version of the rule is applicable. The only differences between the 2012 and 2014 version of this rule are in the references to subsection
· numbers of the Applicant's Handbook, which do not change the outcome of this case. The exception is granted and paragraph 293 is corrected to read as follows:
293. Rule 40C-2.331(2), which establishes standards for permits modified by application, rather than by letter, provides that:
A request for modification under paragraph (l)(a) above must meet the conditions for issuance in Rule 40C-2.301, F.A.C. A request for modification by letter in accordance with paragraph (1)(b) above need only provide information and meet the conditions for issuance in Rule 40C-2.301, F.A.C., that relate to the modification request, in accordance with Section 373.239(2),
F.S. A permit which has expired or which has been revoked shall not be subject to modification. A denial of a request for modification under paragraphs (l)(a) or (l)(b) above shall be processed as provided in Sections -l-:4.-3.3.1(b) and -l-:4.-3.3.2 of the Applicant's Handbook, Consumptive Uses of Water, which is incorporated by reference in paragraph 40C- 2.lOl (l )(a), F.A.C.
District's Exception No. 6
District staff takes exception to COLs 337, 338 and 339 to the extent that they "focus on the introduction of nutrients to the Floridan aquifer as a result of proposed activities on the property." (Dist. Exception at 8). These COLs appear under the heading "Rule 40C-2.301(4)(j) and CUP A.H. Section 10.3 (j)." Essentially, District staff assert that the ALJ has misinterpreted this criterion by considering how the use of water might cause water quality impacts in receiving waters, including the aquifer. As explained below, the District concurs and District staff's exception is granted.
COLs 337, 338 and 339 state as follows:
Rule 40C-2.301(4)(j) and CUP A.H. Section 10.3(j)
Much of the evidence in this proceeding, and consequently many of the
:findings made herein, addressed the extent to which nutrients from the property would reasonably be expected to make their way to the Floridan aquifer, the source of the proposed consumptive use.
The effects of nutrient management and treatment resulting from the NMP, construction of the retention berms, and process of denitrification, combined with the restrictiYe layers preventing water applied to the surface from finding its way to the Floridan aquifer, strongly suggests that few -- if any -- nutrients will be introduced to the Floridan aquifer as a result of the proposed activities on the property.
For the reasons set forth herein, Petitioners failed to prove by a preponderance of competent and substantial evidence that the water quality of the source of the water would be seriously banned by the consumptive use.
Rule 40C-2.301(4) provides in pertinent part:
(4) The following criteria must be met in order for a use to be considered reasonable-beneficial:
The water quality of the source of the water shall not be seriously hanned.
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 paragraphs 62-4.242(1)(a) and (b), subsections 62-4.242(2) and (3), and Rule 62-302.300, F.A.C., and any special standards for Outstanding National Waters set forth in subsections 62-4.242(2) and (3), F.A.C. A valid permit issued pursuant to Chapter 62-660 or 62-670, F.A.C., or Rule 62-4.240, F.A.C., or a permit issued pursuant to Chapter 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.26
Under 40C-2.301(4)(j), F.A.C., and CUP A.H. §10.3(j), the District considers whether hannful water quality impacts to the source will occur from the act of withdrawing or diverting water. See, e.g., Sierra Club v. Hines Interests Limited Partnership and St. Johns River Water
26 This language is also contained in sections 10.3 of the CUP Applicant's Handbook.
Management District (Order on Remand (Case No. 99-1905, Fla. DOAH December 30, 1999; SJRWMD June 15, 2000) (determining that since proposed groundwater withdrawals would not cause saltwater intrusion, the water quality of the source would not be seriously harmed in accordance with 40C-2.301(4)(j), F.A.C., and that proposed withdrawals would not cause a violation of state water quality standards in accordance with 40C-2.301(4)(k) in light of stormwater management system's treatment efficiency and potential for groundwater impacts); See also Nassau v. Beckham. Utilities Comm'n of New Smyrna Beach, Volusia Cnty. Water Supply Auth. & St. Johns River Water Mgmt. Dist., Case No. 92-0246, p. 38 (Fla. DOAH May 13, 1992; SJRWMD June 9, 1992)(considering the potential withdrawal effects from groundwater pumping on the aquifer, including deterioration of water quality, and noting withdrawal rates had been reduced enough to prevent a degradation of water quality).27 If rules 40C-2.301(l)(j) and 10.3(k) were interpreted as set forth in COLs 336 through 339, the District would, as District staff point out, "in essence have duplicative criteria in rules 10.3(j) and (k)." (Dist. Exception at 8)
Granting this exception does not mean that the criterion in 40C-2.301(4)(j), F.A.C'., and 10.3(j) has not been met. In FOP 277, the ALJ found:
Given the previous finding that the Floridan aquifer beneath the property is within the Silver Springs springshed for less than a majority of the time, it is found that a correspondingly small fraction of the less than 1 percent of the particle tracks originating on the North Tract, perhaps a few tenths of one percent, can reach Silver Springs.
27 Petitioners indicate that the CUP Applicant's Handbook "did not exist in 1992." (Pet. Response to Dist. Exception at 4-5). In fact, the applicable handbook was the handbook dated October 4, 1989. The language pertaining to these two criteria was clarified in the Applicant's Handbook that became effective January 7, 1999, and is consistent with the District's interpretation in Nassau. See Fla. Admin R. 40C-2.101.
Moreover, the record reflects that District staff considered the potential for groundwater contamination due to the movement or migration of contaminated groundwater within the Floridan aquifer into the source water of the regional aquifer system and that the parties stipulated that an environmental survey conducted by the applicant concluded that there are no known contaminated sites within 2 miles around the perimeter of the project site. (Jt. Ex. 44; Stip. p. 9 -,i 23). Accordingly, the District concurs with the ALJ's ultimate conclusion that the criteria in rule 40C-2.301, including 40C-2.301(1)G), have been met.
ACCORDINGLY, IT IS HEREBY ORDERED:
The Recommended Order dated April 29, 2015, attached hereto as Exhibit "A", is adopted in its entirety as it relates to CUP Permit Modification Request 2-083-91926-3 except as modified by the final action of the agency in the rulings on FOFs 11 and 116, and COL 293, and as clarified in the rulings on Petitioners' Exceptions 3 and 10, and District staff's Exception 6. Sleepy Creek's CUP number 2-083-91926-3 is hereby issued under the terms and conditions
contained in the Technical Staff Report dated August 17, 2014, attached hereto as Exhibit "B''.
DONE AND ORDERED this /4""- day of July 2015, in Palatka, Florida.
ST. JOHNS RIVER WATER
Ann B. Shortelle, Ph.D. Executive Director
RENDERED this fc..felh day of July, 2015.
BY:
Sandra Bertram District Clerk
Exhibit "B"
CONSUMPTIVE USE TECHNICAL STAFF REPORT
175-AugustMay-2014 APPLICATION #: 91926-3
Owner: | Sleepy Creek Lands LLC Ste 200 700 S Federal Hwy Boca Raton, FL 33432-6128 |
Applicant: | Same as Owner |
Agent: | Andreyev Engineering, Inc. Nicolas Andreyev 4055 Saint Johns Pkwy Sanford, FL 32771-6375 (407) 330-7763 |
Compliance Contact: | Mike Rogers 20 Hidden Forest Dr Cedar Valley, ON L0G1E |
Project Name: | Sleepy Creek North and East Tracts |
County: | Marion |
Located in CFCA: | No |
Objectors: | Yes |
Authorization Statement:
The District authorizes, as limited by the attached permit conditions, the use of 532.9 million gallons per year (mgy) (1.46 million gallons per day (mgd) average) of ground water from the Upper Floridan aquifer via 33 wells (fourteen proposed and four existing 12-inch diameter wells, five proposed and five existing 5-inch wells, one existing 6-inch diameter well, three existing 4-inch diameter wells and one existing 2-inch diameter well) for irrigation of 2,231 acres of improved pasture and other crops, and watering of cattle.
Recommendation: | Approval |
Reviewers: | Victor McDaniel; Dwight Jenkins; Timothy Wetzel; Scott Laidlaw |
Recommended Permit Duration and Compliance Reporting:
The applicant has requested, and staff is recommending issuance of, a 20-year duration permit. Staff is recommending that the applicant be required to submit a compliance report pursuant to subsection 373.236(4), Florida Statutes (F.S.), 10 years from the date of permit issuance. The permittee is required to comply with, and submit all information and data required by, the conditions set forth in this permit.
Use Status:
This is a consolidation of two permits (2-083-91926-2 and 2-083-3011-7) into a single permit under number 91926. In addition, the applicant proposes to modify the consolidated permit to authorize withdrawals on the Sleepy Creek Lands LLC North Tract, which is further from Silver Springs than the current withdrawal location. The applicant is not requesting any increase in allocation above what is currently authorized in the two permits and the net effect of this modification is to slightly decrease the effect of the allocated withdrawal on the flow of Silver Springs.
PROJECT DESCRIPTION:
Project Location:
The Sleepy Creek Lands North and East Tracts cattle farm project is located in northern Marion County northwest and southeast of the community of Fort McCoy. The project consists of two separate non-contiguous parcels (the northern portion of the Sleepy Creek Lands LLC property and the Ft McCoy/Jones Turf-Grass Farms). The project area that is the subject of this application consists of a total of approximately 8,200 acres.
Hydrogeologic Setting:
The project site is located in North Central Florida and lies on the eastern edge of what is known as the Ocala Uplift or Ocala Platform. The Ocala Uplift is an area where the limestone that comprises the Floridan Aquifer System (FAS) exists at or very near land surface. Typically, the limestone in the Ocala Uplift area has little to no unconsolidated material covering it. The occurrence of karst features (caves, sinkholes, karst prairies) are very common in this area. The Ocala Uplift is bordered by a geologic feature called the Cody Escarpment. The Cody Escarpment is where the limestone transitions from having no or thin cover to being more substantially covered by the clays and other sediments of the Hawthorn Group and sands, shell and silt that contain the surficial aquifer. The North Tract lies to the east of both the Ocala Uplift and the Cody Escarpment in an area where there is substantial cover by clays and other sediments of the Hawthorn Group. As a result, there is a surficial aquifer system on-site and the effect of withdrawals from the Upper Florida aquifer are buffered. Although the property is bordered on the west by karst prairies, site investigations have shown that there are no karst prairies within the project area. Based on review of available information, District staff has determined there are generally five hydrogeologic units of relevance within the site. These hydrogeologic units include the surficial aquifer system (SAS), the intermediate confining unit (ICU), the Upper Floridan aquifer (UFA), the middle confining unit I (MCUI), and the Lower Floridan aquifer (LFA).
The surficial aquifer system (SAS) is unconfined, and its upper boundary is defined by the water table. The SAS in the vicinity of the site is predominantly quartz sand layered between clayey sands. Based upon the test boring data collected near the site of Pivot Well 9, the sediments that form the SAS extend to a depth of approximately 55-60 ft below land surface (bls).
The top of the underlying ICU is defined by the presence of stiff, gray-green, phosphate bearing clays that make up the top of the Hawthorn Group. The lower portion of the ICU
consists of sandy clay grading to hard, light tan colored, dolomitic limestone. The hard limestone layer generally occurs at a depth of 100 feet, and defines the bottom of the ICU and the top of the UFA.
The UFA consists of alternating layers of soft and hard light cream to brown limestone. The base of the UFA (and the top of the MCUI) was identified at 340 ft bls based on 1) a change from softer materials to much harder ones, 2) a high electrical resistivity log response in geophysical testing performed on a 950-foot deep test hole, and 3) correlation to other wells where the MCUI has been mapped by the District.
Based on the results of the deep test hole, the brown limestones and dolostones that comprise the MCUI have been estimated to extend from a depth of 340 ft to 750 ft bls. Preliminary evaluations based on temperature and fluid conductivity logs, as well as correlation with other logs, indicate that the base of the MCUI and the top of the LFA is 750 ft bls.
The section of the LFA encountered during drilling of the on-site test hole consists of alternating beds of limestone and dolostones. The test hole penetrated the upper 200 feet of the LFA (depth of 950 ft bls). Review of currently available information for the region indicates that the LFA extends to a depth of approximately 1,800 ft bls in the vicinity of the site.
Background:
The proposed project consists of converting approximately 7,208 acres of pine plantation, improved pasture and wetlands (North Tract), and 1,010 acres of existing sod farms (East Tract) into a cattle grazing and finishing operation for the production of grass-fed beef. The proposed project is designed to maximize cattle forage intake on the North Tract through intensive rotational grazing practices and minimize the need to use supplemental feed. On the East Tract, the applicant proposes to utilize more standard grazing and pasture management techniques. To produce the forage necessary for grazing operations, the applicant is proposing to irrigate 2,231 acres of pasture. Each irrigated area will be watered with an efficient long radius pivot arm irrigation system.
The proposed project is designed around the cattle finishing process. Based on the ranch model, arriving cattle with an average weight of 875-lbs will be temporarily held at receiving corrals. They will then be grazed and rotated over time through the irrigated pastures and grain crops, eventually reaching the beef harvesting facility corral. The pasture rotation process will maximize cattle weight gain so that by the time the cattle reach the harvesting facility their anticipated finished weight will be 1,150-lbs. Due to the variable crop production throughout the year, excess forage production during the high growth periods will be mechanically harvested as haylage. This haylage will provide supplemental feed for the cattle during transitional periods when pasture or crop growth is insufficient to keep up with animal needs.
In addition to pasture and grass/crop irrigation, the applicant is also requesting to withdraw and use water for cattle watering. The percentage breakdown of use by type (irrigation and cattle watering) is 97% irrigation and 3% cattle watering. The site also consists of non-irrigated pasture areas and other non-irrigated, miscellaneous land uses (e.g., timber).
Water Supply System Description:
The applicant is proposing to construct fourteen 12-inch wells and five 5-inch wells. There are four 12-inch diameter wells, five 5-inch wells, one 6-inch diameter well, three 4-inch diameter wells and one 2-inch well already on the properties. The 12-inch diameter wells will withdraw water from the Upper Floridan aquifer to supply 21 center pivots which will be used for irrigation and chemigation of improved pasture areas. The six, five, four and two-inch wells will be used for cattle watering. The typical 12-inch diameter well will be constructed to a total depth of approximately 200 feet, with steel casing to a depth of approximately 100 feet. Each well will be equipped with a 75-hp submersible pump and will be capable of producing 1,500 to 2,500 gpm.
On the North Tract, the applicant proposes to use fifteen long radius pivot irrigation arms that are capable of rotating 360° in 24-hrs. On the East Tract, the applicant proposes to use the existing six pivots on the sod farms. Water will be supplied to each pivot by
a UFA well.
Description of Proposed Water Use:
This application seeks to modify two permits to irrigate 2,231 acres of pasture grasses
and grain crops using 21 center pivot irrigation systems and to water 7,5789,500 head of cattle. The project area is divided between two tracts, the North Tract and East Tract.
On the North Tract, the applicant proposes to irrigate 1,620 acres using 15 center pivot systems. In any year, 20% of the irrigated area will be double-cropped with pasture grass and grains crops. The remaining 80% of the irrigated area will be used to grow pasture grasses only. The proposed use is 100% agriculture.
The East Tract consists of two adjacent parcels, which currently are permitted by CUPs #2-083-91926-2 and 2-083-3011-7, which have a combined allocation of 532.9 mgy (1.46 mgd) to irrigate 1,010 acres of sod (total). The applicant proposes to reduce the
authorized irrigated area on the East Tract from 1,010 acres of sod to 611 acres of pasture grasses. The reduction in irrigated area and the change to pasture grass reduces the irrigation allocation for the 2-in-10 drought year for the East Tract to 169 mgy (0.464 mgd).
Aquifer Testing:
In order to evaluate impacts of the requested withdrawals, the applicant conducted two UFA aquifer performance tests (APTs) and coordinated with the District in the planning and implementation of a third UFA APT. The first two tests were comparable in scope and duration, while the third test was expanded in both scope and duration. In all cases, aquifer test plans were reviewed by District staff prior to implementation.
The first APT was conducted on the North Tract on a well that will serve proposed Pivot
9. The APT on Well 9 (formerly Well 21) began on March 26, 2012. Withdrawal rates of 2,338 gpm were maintained for 2.3 days before the test was terminated. Drawdown at UFA observation wells located within 100 feet of the test production well varied from three to 3.5 feet at the end of the test. Manual readings taken from wells located approximately 4,700 feet from the pumping well indicated UFA drawdown of approximately 1.5 feet. Standard analytical techniques were used to estimate the UFA
transmissivity from drawdown data collected from the wells located within approximately
2
100 feet of the production well. A mean value of 112,138 ft
-1
UFA transmissivity, along with a leakance of 3.12E-9 day
curve matching evaluation.
/day was estimated for the interpreted from the type-
The second APT was performed on Well 33 (formerly Well 83) near the southwest corner of the larger tract of property owned by the applicant (approximately 5,000 feet east of Indian Lake Prairie). The APT began on October 17, 2012. Withdrawal rates of 1,423 gpm were maintained for 2.0 days before the test was terminated. Drawdown at UFA observation wells located within 100 feet of the test production varied from 9 to 12 feet at the end of the test. Standard analytical techniques were used to estimate the UFA transmissivity from drawdown data for wells located within approximately 100 feet of the
production well. A mean value of 12,200 ft2/day was estimated for the UFA
transmissivity. Leakance estimated from the type-curve matching was estimated at 1.0E-
-1
2 day .
The estimated parameters from the first two APTs significantly deviated from those utilized in the calibration of the North Central Florida Active Water-Table Regional Groundwater Flow Model (NCF model). UFA transmissivities within the NCF model at
2
these APT locations yielded 625,000 ft /day for Well 9 (compared to a mean test value
of 112,138 ft
2
2
/day), and 2,000,000 ft
2/day for Well 33 (compared to a mean test value of
12,200 ft /day).
District staff reviewed all of the available data for the region, including the information derived from the two APTs and determined that additional site-specific information was needed in order to provide reasonable assurances regarding the on-site aquifer characteristics. With that objective in mind, a third APT was conducted. Well 9 was again used as the production well. The APT also included an array of 19 wells monitoring: the SAS (total of four wells); the ICU (total of four wells); the UFA (total of ten wells); and the uppermost portion of the MCUI (one well). The majority of the shallower wells (SAS and ICU) were constructed within 150 feet of the production well. Several of the UFA wells were within 100 feet of the pumping well, with the remainder spaced at distances varying from 800 to 13,000 feet. Background wells were established at the second APT site (Well 33), approximately five miles to the south/southwest.
Preliminary evaluation of the data collected during the third APT indicate that the UFA transmissivity values within a significant portion of the project site should generally be lowered when this area is represented in the NCF model. This means that the NCF model runs conducted as part of this application review are conservative (e.g., over- estimate harm) with regard to potential impacts to Silver Springs.
Ground Water Flow Modeling:
The current version of the District’s NCF model was used to estimate impacts on local and regional ground water levels and flows. Many project specific simulations were run by both the applicant’s consultants as well as District staff using the NCF model. The simulations included assessment of individual (project specific) and cumulative impacts
by applying the District’s ground water use estimates for 1995 and End of Permit (EOP) allocations.
A number of simulations were run that addressed potential water use scenarios for and between the North and East Tracts. This was done to identify and evaluate potential worst case scenarios. All scenarios produced results that demonstrated that the proposed application will reduce potential harm at Silver Springs.
PERMIT APPLICATION REVIEW:
Section 373.223, F.S., and Section 40C-2.301, Florida Administrative Code (F.A.C.), require an applicant to establish that the proposed use of water:
is a reasonable-beneficial use;
will not interfere with any presently existing legal use of water; and,
is consistent with the public interest.
In addition, the above requirements are detailed further in the District's Applicant's Handbook: Consumptive Uses of Water, September 16, 2012 ("A.H.") District staff has reviewed the consumptive use permit application pursuant to the above-described requirements and has determined that the application meets the conditions for issuance of this permit. A summary of District staff’s review is provided below.
REASONABLE BENEFICIAL USE CRITERIA [Section 10.3]
Economic and Efficient Utilization [10.3(a)]:
Staff evaluated whether the proposed water is in such quantity as is necessary for economic and efficient utilization by considering the amount of water needed for
the proposed crops and livestock. Requested irrigation quantities were determined using the District’s supported program, GWRAPPS (GIS-based Water Resources & Agricultural Permitting & Planning System), specifically tailored for this location and proposed crops. GWRAPPS is a program based on the AFSIRS (Agricultural Field Scale Irrigation Requirements Simulation) model, which was developed by the Biological and Agricultural Engineering Department, University of Florida.
The applicant submitted an extensive analysis based on the District’s GWRAPPS model to estimate the amount of water needed for its proposed crop irrigation. For each irrigated area under center pivot, the acreage of each soil type was determined. Based on the acreage and droughtiness of the soils identified, a soil type was selected to represent the soil type for each center pivot system (CPS) in the GWRAPPS. To improve the accuracy of estimating the irrigation requirements for this project, the applicant updated the default rainfall data typically used by the GWRAPPS program. The updated rainfall data is more representative of the actual rainfall intensities and frequencies expected at the site.
All irrigation will be performed by center pivots systems. Center pivot systems are the most efficient irrigation systems capable of irrigating large areas with varying crop types. An irrigation efficiency of 85% was assumed for the proposed fifteen and existing six center pivot systems. To insure the irrigation systems are properly managed, the applicant has submitted a Water Conservation Plan (see next section for details). The
irrigation requirement for each CPS for the 2-in-10 drought year is summarized in the table below:
Irrigation Demand for the 2-in-10 drought year summary:
Pivot ID | Soil Type | CPS Area (acres) | GIR, in | GIR, mgd | GIR, mgy |
PHASE 1A NORTH TRACT | |||||
1 | Lynne Sand | 125.7 | 16.05 | 0.150 | 54.76 |
2 | Lynne Sand | 125.7 | 16.05 | 0.150 | 54.76 |
3 | Lynne Sand | 125.7 | 16.05 | 0.150 | 54.76 |
4 | Lynne Sand | 125.7 | 16.05 | 0.150 | 54.76 |
5 | Eaton Loamy Sand | 96.5 | 16.69 | 0.120 | 43.75 |
6 | Electra Sand | 103.0 | 19.11 | 0.146 | 53.43 |
7 | Lynne Sand | 70.0 | 16.05 | 0.084 | 30.49 |
8 | Lynne Sand | 125.7 | 16.05 | 0.150 | 54.76 |
9 | Lynne Sand | 125.7 | 16.05 | 0.150 | 54.76 |
10 | Lynne Sand | 102.3 | 16.05 | 0.122 | 44.60 |
11 | Lynne Sand | 70.0 | 16.05 | 0.084 | 30.49 |
12 | Lynne Sand | 120.5 | 16.05 | 0.144 | 52.50 |
13 | Lynne Sand | 100.3 | 16.05 | 0.120 | 43.73 |
14 | Lynne Sand | 86.5 | 16.05 | 0.103 | 37.68 |
15 | Electra Sand | 117.5 | 19.11 | 0.167 | 60.96 |
Subtotal | 1620.4 | 1.990 | 726.17 | ||
EAST TRACT | |||||
E-1 | Eaton loamy sand | 93.1 | 10.46 | 0.072 | 26.45 |
E-2 | Lynne Sand | 117.3 | 10.01 | 0.087 | 31.89 |
W-1 | Eaton loamy sand | 20.5 | 10.46 | 0.016 | 5.82 |
W-2 | Eaton loamy sand | 157.1 | 10.46 | 0.122 | 44.63 |
W-3 | Lynne Sand | 130.7 | 10.01 | 0.097 | 35.54 |
W-4 | Lynne Sand | 92.3 | 10.01 | 0.069 | 25.10 |
Subtotal | 611.0 | 0.464 | 169.44 | ||
Project Total | 2231.4 | 2.454 | 895.61 | ||
For the irrigated areas, the applicant has requested 0.5 mgy (0.001 mgd) of ground water for chemical mixing for the application of herbicides and pesticides. This request is for a total of 212 gallons per acre per year, based on four applications per year.
The applicant has requested 33.241.6 mgy (0.090114 mgd) of ground water to water 75789,500 head of cattle. The requested volume is based on an average of 12 gallons per day per cow, as recommended in the District’s CUP Applicant’s Handbook.
The total water demand for irrigation, chemical mixing and livestock water is summarized in the table below:
Total Water Demand | ||
Water Demand Type/Site | Average Demand | |
Irrigation Water Demand | mgd | mgy |
North Tract (1620.4 acres) | 1.990 | 726.2 |
East Tract (611 acres) | 0.464 | 169.4 |
Subtotal (2231.4 acres) | 2.454 | 895.6 |
Chemical Mixing Water Demand | ||
North Tract (1620.4 acres) | 0.001 | 0.3 |
East Tract (611 acres) | 0.0004 | 0.2 |
Subtotal (2231.4 acres) | 0.001 | 0.5 |
Livestock Water Demand | ||
North Tract (63716333 cows) | 0.076 | 27.97 |
East Tract (12073267 cows) | 0.01438 | 5.3 |
Subtotal (75789500 cows) | 0.090114 | 33.2 |
Total Water Demand per Tract | ||
North Tract | 2.0676 | 754.42 |
East Tract | 0.478503 | 174.9 |
Grand Total | 2.545 | 929.3 |
The applicant has submitted calculations indicating a water demand that exceeds the combined existing allocations for permit numbers 91926-2 and 3011-7, which have a combined allocation of 532.9 mgy (1.46 mgd). The demonstrated demand is based on all areas under center pivot being irrigated. However, the applicant has stated that it is not seeking under this permit to irrigate all the areas to maximum demand, but wants to have the flexibility to irrigate in all 21 center pivot areas as appropriate to the management of the project site. The applicant has stated that it will only irrigate as needed and will stay within the requested allocation of 1.46 mgd.
Based on the submitted GWRAPPS model runs and the proposed irrigation method, staff has concluded that the irrigation demand is an economic and efficient use of the resource. Also, based on typical farming practices and the requested allocation for livestock watering, staff have concluded the requested chemical mixing and livestock watering demand is an economic and efficient use of the resource.
Reasonable and Consistent with the Public Interest [10.3(b)]:
Staff evaluated whether the requested consumptive use of water is consistent with the public interest. Staff concludes that the continued use of water is consistent with the
public interest because the proposed use is for the production of beef cattle and is a registered business within the state of Florida. The project provides an economic benefit to the applicant and citizens of the state. In addition, the use will not adversely affect water resources, qualifies as a reasonable-beneficial use based on the factors listed in 40C-2.301(4),(a), (b), (c), (d), (e), (f), (g), (h), (i), (j), (k), (I), F.A.C., and none of the
reasons for denial relating to saline water intrusion, off-site damages, water use reservations, minimum flows and levels, and water table/surface water levels are present with the proposed use.
Capable of Producing Requested Amount [10.3(c)]:
The applicant is proposing to withdraw 1.46 mgd annual average and up to 11.5 mgd as a maximum day withdrawal from the UFA. Staff and the applicant utilized the NCF model and information obtained from the on-site APTs to evaluate whether the UFA is capable of supplying the requested quantities of water. Based on the NCF model and the APTs, the Floridan aquifer at this property is capable of producing large quantities of ground water from wells installed into the UFA. The APT test conducted in the northern half of the site was pumped at a maximum rate of 2,500 gallons per minute, which translates to
3.6 mgd. The daily withdrawal rates proposed from the larger irrigation wells under this CUP range from 0.08 to 0.17 mgd. The maximum day withdrawal rates were estimated to range from 0.3 to 0.8 mgd. The long term drawdown modeling results presented in this report indicate that the aquifer will experience only minor declines in potentiometric pressure due to the proposed ground water withdrawals, no greater than 0.07 feet for the applicant’s proposed impacts and no greater than 0.5 feet for cumulative impacts. Therefore, District staff concludes that the UFA at this site is fully capable of producing the requested quantities of ground water.
Environmental Harm [10.3(d)]:
District staff evaluated whether the proposed modification to the existing use would cause environmental harm and, if so, whether the harm has been reduced to an acceptable amount. The applicant and staff evaluated the potential impact associated with three withdrawal scenarios. The first scenario (Scenario 1) was performed using
1.46 mgd of ground water from the UFA on just the North Tract. The second scenario (Scenario 2) was performed using 0.96 mgd from the UFA on the North Tract along with
0.50 mgd on the East Tract. The third scenario (Scenario 3) was to evaluate the potential impacts associated with use of 2.39 mgd of withdrawal on the North Tract. The use of previous modeling that considered a withdrawal 2.39 mgd is very conservative since it is 63% greater than the 1.46 mgd withdrawals being proposed in this permit application.
Wetland and Other Surface Waters:
In evaluating whether wetlands and other surface waters would be harmed, staff utilized scenarios 2 and 3. For Scenario 2, the ground water flow model simulations predict that the proposed pumping regime will lower the surficial aquifer by no greater than 0.02 feet. For Scenario 3, the ground water flow model simulations predict that the proposed pumping regime will lower the surficial aquifer by no greater than 0.06 feet. Staff utilized the results of this ground water flow modeling, site visits and aerial photography of the site and vicinity to evaluate the current condition of wetlands and other surface waters.
Based on the small predicted drawdown in the surficial aquifer, staff has determined that
reasonable assurance has been provided that environmental harm to wetlands and other surface waters in the area of the proposed withdrawal has been reduced to an acceptable amount.
Springs:
In evaluating whether springs (other than Silver Springs) would be harmed, staff considered scenarios 1 and 2. There are 46 springs identified as existing in the NCF model area and the modeling indicates that the proposed withdrawals will have
no impact on most of these springs. However, staff performed additional evaluations on four small springs that occur in close proximity to the project site (Orange, Camp Seminole, Wells Landing and Tobacco Patch Landing). All of these springs have significantly altered spring pools or runs due to human construction and activity.
Orange Spring: This third-magnitude spring was historically touted for its therapeutic properties and was a tourist destination at one time. The spring is enclosed by a kidney shaped pool that allows the spring to stage up and then discharge over a constructed limestone wall and into the spring run. Currently, a water bottling facility (Premium Waters Inc., CUP no. 20-083-3138-3) is situated adjacent to the spring and withdraws water from the spring for small batch boutique bottling.
Camp Seminole Spring: This fourth-magnitude spring is enclosed by a heart shaped pool and wall. Historically developed as a honeymoon resort in the 1970’s, it is currently used as a Girl Scout swimming area. A manual weir system allows water levels to be manipulated in order to fill or drain the swimming area as needed.
Wells Landing Spring: This third magnitude spring belongs to a group of springs called Cannon Springs Group. The springs were inundated by Rodman Reservoir after the construction of the Eureka Dam on the Ocklawaha River.
Tobacco Patch Landing Spring: This third magnitude spring is also affected by Rodman Reservoir and is normally submerged under 4 to 5 feet of water.
Potential spring discharge changes were assessed based on the results of ground water flow modeling. For Scenario 1, the modeling predicts that Wells Landing Spring will experience up to a 0.01 cfs reduction in flow and Tobacco Patch Landing Spring will experience up to a 0.02 cfs reduction in flow. Staff concludes that this very small reduction in flow has been reduced to an acceptable amount. For Scenario 2, the model predicts that there will be no reduction in spring flow for any of the springs within the model domain. Staff concludes that reasonable assurance has been provided that environmental harm to springs in the area of the proposed withdrawal has been reduced to an acceptable amount.
Silver Springs:
There are no established Minimum Flows and Levels (MFLs) on Silver Springs or the Silver River at this time. However, multi-year investigations by District staff are on-going to develop levels and a flow regime for the spring system. These minimum levels and flow regime would be the limit at which further withdrawals would be significantly harmful to the water resources or ecology of the area. As a result of the applicant’s proposal to shift a portion of its water withdrawals from the East Tract to the North Tract, modeling
results indicate that there should be an increase in flow at Silver Springs of approximately 0.27 cfs under Scenario 1 and an increase of 0.15 cfs under Scenario 2. Therefore, District staff concludes that the proposed modification to the existing use will not cause environmental harm to Silver Springs and the Silver River, and in fact, rather than causing harm, there will be an increase in flow at Silver Springs.
Economic Harm [10.3(d)]:
Section 10.3(d) provides that economic harm must be reduced to an acceptable amount. In applying this criterion, District staff evaluated the potential for economic harm that will result due to adverse water resource impacts. The District does not consider economic harm beyond that caused by water resource impacts. Ground water flow modeling and other assessments indicate that the proposed use of water will have only a very small impact on ground water levels and water resources. Based on the anticipated very small impact, staff does not believe that the proposed use of water will have any economic impact on adjacent property owners, local businesses or other persons. In addition, this project will create a small number of jobs and, therefore, will have a positive economic benefit in the area. As such, staff concludes that the proposed use of water will not result in any economic harm and, therefore, that economic harm has been reduced to an acceptable amount.
Water Conservation [10.3(e) and 12.5.7.1]:
Section 10.3(e) provides that a permittee must implement all available water conservation measures unless the applicant demonstrates that implementation is not economically, environmentally or technologically feasible. It also states that this criterion can be satisfied by the implementation of an approved water conservation plan as required in section 12.0 of the A.H.
The applicant submitted a water conservation plan as required by District rule. The plan includes the commitment by the applicant to implement numerous water conservation measures. The measures include proposed installation of a very high efficiency automatically operated computerized irrigation system, periodic water audits, rainfall shutoff sensors, use of an on-site weather station, use of a professional water conservation consultant, daily maintenance inspections and other measures. Based on review of the plan, staff concludes that the proposed water conservation plan meets District water conservation requirements.
Use of Reclaimed Water [10.3(f)]:
Section 10.3(f) provides that reclaimed water must be used in place of higher quality ground water when readily available unless the applicant demonstrates its use is economically, environmentally, or technologically infeasible.
The applicant performed detailed analysis on whether the use of reclaimed water is feasible. The nearest source of reclaimed water is the city of Ocala, which is approximately 14 miles away. In order to utilize this source of reclaimed water, the applicant and/or utility provider would have to construct significant transmission lines to convey the reclaimed water to the site. In addition, use of the reclaimed water would require the applicant to construct a large transmission system, storage ponds and surface water pumping stations on-site. Finally, since reclaimed water availability can
vary during the course of the year, the applicant would still need to construct wells in order to have ground water as a backup source.
The applicant analyzed the costs associated with all the above and demonstrated that the costs rendered the use of reclaimed water economically infeasible. In addition, staff concludes that reclaimed water is not readily available due to the significant distance of the sources from the site.
Lowest Quality Water Source [10.3(g)]:
The applicant performed a detailed analysis on whether the use of lower quality water sources is feasible. In addition to the use of reclaimed water (discussed above), the applicant evaluated whether surface water or captured storm water could be utilized to meet the water needs of this project. Specifically, the applicant evaluated whether the use of surface water from the Ocklawaha River and from on-site captured storm water was available and feasible.
As with reclaimed water, in order to utilize surface water sources, the applicant and/or utility providers would have to construct significant transmission lines plus pumping stations to withdraw and convey the surface water to the site. In addition, use of the lower quality water sources would require the applicant to construct a large transmission system, storage ponds and surface water pumping stations on-site. Finally, since the surface water would be an unreliable source and may not be able to supply the water needs during dry periods, the applicant would still need to construct wells in order to use ground water as a backup source.
The applicant analyzed the costs associated with all the above and demonstrated that the costs rendered the use of lower quality water sources economically infeasible.
Specifically, the applicant looked at the costs associated with the various uses of lower quality source options and then analyzed how the costs would impact their earnings with respect to the marketplace for a similar product. The analyses show that implementing any of the lower quality source options would add significant costs, risks and uncertainty to the project and would create a price differential for the product resulting in an unfair economic burden that will likely make them uncompetitive with similar grass-fed operators. In addition, the applicant states that the additional costs would significantly reduce the grass-fed beef product premium sought by the applicant which is the basis for desiring to raise grass-fed beef over conventional beef (47% reduction). Based on the analyses submitted, staff concludes that the use of lower quality sources of water is not economically feasible to implement at this time.
Saline Water Intrusion [10.3(h), 9.4.2]:
Staff evaluated whether the proposed use of ground water from the UFA would cause or contribute to significant saline water intrusion. Because the project is located in North Central Florida on the eastern edge of the Ocala Uplift and is a significant distance from the coast, the fresh water portion of the Floridan aquifer is very thick and there are no known sources of saline water nearby.
Fresh water (water with chloride concentrations less than 250 mg/L) underlies the project site to depths of 1,700 feet below NGVD. Review of available ground water quality information indicates that chloride concentrations in the area have been
reasonably stable for many years. No problems concerning the salinity of water in the Floridan aquifer in this area are currently known to exist. Ground water modeling indicates that the potentiometric surface decline will be very small, and staff concludes that the proposed consumptive use will not cause or contribute to significant saline water intrusion.
Flood Damage [10.3(i)]:
Staff evaluated whether the proposed use of water will cause or contribute to off-site flooding. The proposed use of water is primarily for irrigation of pasture and crops on a supplemental basis when rainfall is insufficient to meet plant needs. As such, the applicant will only be irrigating during dry periods. Also, irrigation will occur in a very efficient manner and is designed to provide only the amount of water needed by pasture and crops. The applicant will not be over-irrigating or irrigating during wet periods. As such, any water that is used for irrigation will remain on site. Staff concludes that the irrigation will not cause or contribute to off-site flooding
Quality of Source [10.3(j)]:
The applicant evaluated whether the proposed withdrawals would seriously harm the water quality of the source. Specifically, the applicant evaluated the potential for ground water contamination due to the movement or migration of contaminated ground water within the Floridan aquifer into the source water of the regional aquifer system. The applicant conducted a record search (Phase 1 Environmental Survey - Type) to identify any existing contaminated sites within a 2-mile distance around the perimeter of the property boundaries. The applicant performed a review of identified and reported properties included in the following databases:
NPL CERCLIS NFRAP
RCRA COR ACT RCRA TSD RCRA GEN
State & Federal Brownfields ERNS
State Spills 90 SWL
LUST
UST & AST
Federal IC/EC Dry Cleaners
The results of the record search revealed that there are no known contaminated sites within 2 miles around the perimeter of the project site. Based on this analysis, staff concludes that the proposed ground water withdrawal will have no potential impact on the movement or migration of contaminated ground water in the region.
Water Quality Standards [10.3(k)]:
Section 10.3(k) states 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.
While the applicant’s agricultural activities on the North Tract (converting forested uplands to improved pasture) are statutorily exempt from the need to obtain an environmental resource permit (ERP), the applicant has obtained an ERP (No. IND-083- 130588-4) . The activities approved by the ERP provide additional water quality treatment through the establishment of vegetated upland buffers, retention berms, redistribution swales, and the implementation of other conservation practices in the North Tract. The applicant has also indicated that it will implement the applicable Department of Agriculture and Consumer Services (DACS) best management practices (BMPs) on the East Tract to prevent water quality impacts there. The implementation of the proposed BMPs provides reasonable assurance that there will not be a water quality impact from the East Tract.
REASONS FOR DENIAL [Section 9.4.1]
Saline Water Intrusion [9.4.2]: See above discussion on saline water intrusion.
Off-site Damages [9.4.3]: Section 9.4.3, A.H., provides that a permit will be denied if the permit would allow withdrawals that would cause an unmitigated adverse impact on adjacent land use that existed at the time of permit application. Adverse impacts on adjacent land use include significant reduction in water levels in an adjacent surface water body, significant potential for land collapse or subsidence caused by a reduction in water levels and damage to crops, wetlands or other types of vegetation.
As discussed above, ground water flow modeling and other assessments indicate that the proposed use of water will have only a very small impact on ground water levels and water resources. Based on the anticipated very small impact due to the proposed withdrawals, staff do not believe that the proposed use of water will have an adverse impact on adjacent property or cause significant reduction in water levels in an adjacent surface water body, create a significant potential for land collapse or subsidence caused by a reduction in water levels or damage crops, wetlands or other types of vegetation.
As such, staff concludes that the proposed use of water will not cause off-site damages.
Water Reserved from Use [9.4.5]:
The issuance of a permit will be denied if the proposed use will require the use of water which pursuant to subsection 373.223(4), F.S., and rule 40C-2.302, F.A.C., the Board has reserved from use by rule (9.4.5, A.H.).
Staff evaluated whether issuance of the permit will require the use of water, which has been reserved from use by rule. Section 9.4.5, A.H., provides that the Governing Board by regulation may reserve from use by permit applicants, water in such locations and quantities, and for such seasons of the year, as in its judgment may be required for the protection of fish and wildlife or the public health and safety. The Governing Board has reserved from use a certain portion of the surface water flow through Prairie Creek and Camps Canal south of Newnans Lake in Alachua County, Florida (section 40C-2.302, F.A.C., August 18, 1994). District staff used ground water modeling results to assess the potential effects of the proposed withdrawals on SAS and UFA water levels in the area of Prairie Creek and Camps Canal. Model results predict no significant reduction in SAS and UFA water levels in the area of interest. Staff concludes that reasonable assurances have been provided that the proposed use of water will not impact surface water flow through Prairie Creek and Camps Canal which has been reserved from use by rule pursuant to rule 40C-2.302, F.A.C., provided the permittee complies with the conditions required by this permit.
Minimum Flows [9.4.6]:
The issuance of a permit will be denied if the proposed use will cause the rate of flow of a surface watercourse to be lowered below a minimum flow which has been established pursuant to subsection 373.042(1), F.S., or Chapter 40C-8, F.A.C. (9.4.6, A.H.). Staff evaluated whether issuance of the permit will cause the rate of flow of springs and surface watercourses to be lowered below an established minimum flow. Sections 9.4.1(e) and 9.4.6, A.H., provide that issuance of a permit will be denied if the permit would allow withdrawals of water to cause the rate of flow of a surface watercourse to be lowered below a minimum flow which has been established pursuant to subsection 373.042(1), F.S., or Chapter 40C-8, F.A.C. A minimum rate of flow has been established for Blue Spring (Volusia County); Messant, Seminole and Palm springs (Lake County); and Rock Springs (Orange County), which are all springs within the NCF model domain. In order to evaluate the potential for spring flow alterations, District staff used ground water modeling results to assess the potential effects of the proposed ground water withdrawals on the established minimum flows. Model results predict no reduction in spring flows. Staff conclude that reasonable assurances have been provided that the proposed use of water will not adversely affect minimum flows for springs located within the NCF model domain, provided the permittee complies with the conditions required by this permit.
Minimum Levels [9.4.7]:
The issuance of a permit will be denied if the proposed use will 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 pursuant to subsection 373.042(2), F.S., or Chapter 40C-8, F.A.C. (9.4.7, A.H.). Staff evaluated whether issuance of the permit will cause the water level in ground water or surface water bodies to be lowered below a minimum level established by rule. Sections 9.4.1(f) and 9.4.7, A.H., provide that issuance of a permit will be denied if the permit would allow withdrawals of water to 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 pursuant to subsection 373.042(2), F.S., or Chapter 40C-8, F.A.C. Eighty-two surface water bodies with minimum levels specified in subsection 40C-8.031(4), F.A.C., are present within the NCF
model domain. In order to evaluate the potential for causing the lake levels to be altered below the established minimums, District staff used ground water modeling results to assess the potential effects of the proposed withdrawals on the potentiometric surface of the UFA beneath lakes with established minimum levels within the model domain. Those results indicate that the proposed withdrawal will not cause a significant reduction in UFA potentiometric levels below these lakes. Staff conclude that reasonable assurances have been provided that the proposed withdrawals will not cause a water level to fall below its established minimum level, provided the permittee complies with the conditions required by this permit.
INTERFERENCE WITH EXISTING LEGAL USE OF WATER [Section 9.2]:
As part of its evaluation to address potential interference with existing legal uses, District staff researched whether there are any existing wells near the project. Because there were so few wells near the project, District staff evaluated this criterion by performing an evaluation using a hypothetical well located at the property boundary. The evaluation included the following conservative assumptions:
A small domestic well located within 100 feet of the project boundary (areas of highest potential drawdown), installed either in the shallow aquifer or the Upper Floridan aquifer.
A centrifugal pump is used to pump the water from the shallow aquifer well with lift capacity of 25 feet.
A small submersible pump is used to pump water from the Upper Floridan aquifer well.
The minimum total hydraulic head for the submersible pump (including head loss in pipes and pressure at the house) is 60 psi or 135 feet.
A maximum 1 day withdrawal at 10.88 mgd and maximum 30-day withdrawal at 6.34 mgd were considered in the evaluation. This was modeled using a transient stress period at the end of a 30-year stress period (steady state condition).
The various analyses performed indicate that there will not be any drawdown in the SAS and a very small drawdown in the UFA at the edge of the property. As such, staff concludes that the proposed ground water withdrawals will have no adverse impacts on legal water uses.
PUBLIC INTEREST [Section 9.3]:
Staff evaluated whether the requested consumptive use of water is consistent with the public interest. Staff concludes that the continued use of water at the project is consistent with the public interest because the proposed use of water is for a cattle farm/operation designed to raise grass-fed beef and is a registered business within the state of Florida. The project provides an economic benefit to the applicant and citizens of the State. In addition, the use will not adversely affect water resources, qualifies as a reasonable-beneficial use based on the factors listed in 40C-2.301(4), (a), (b), (c), (d), (e), (f), (g), (h), (i), (j), (k), (I), F.A.C., and none of the reasons for denial relating to saline water intrusion, off-site damages, water use reservations, minimum flows and levels, and water table/surface water levels are present with the proposed use.
SUMMARY OF EVALUATION AND OVERALL CONCLUSION OF PERMITTABILITY:
Based on the above, staff concludes that the applicant has demonstrated that the proposed use of water is a reasonable-beneficial use of water, will not cause interference with existing legal uses of water, is consistent with the public interest and none of the reasons for denial apply pursuant to District permitting rules. Therefore, staff concludes that the proposed use of water meets the Districts criteria for issuance of a CUP.
PERMIT DURATION: Staff is recommending issuance of a 20-year permit.
Conditions
District authorized staff, upon proper identification, will have permission to enter, inspect, and observe permitted and related facilities in order to determine compliance with the approved plans, specifications, and conditions of this permit.
Nothing in this permit should be construed to limit the authority of the St. Johns River Water Management District to declare a water shortage and issue orders pursuant to Section 373.175, Florida Statutes, or to formulate a plan for implementation during periods of water shortage, pursuant to Section 373.246, Florida Statutes. In the event a water shortage is declared by the District Governing Board, the permittee must adhere to the water shortage restrictions as specified by the District, even though the specified water shortage restrictions may be inconsistent with the terms and conditions of this permit.
Prior to the construction, modification, or abandonment of a well, the permittee must obtain a Water Well Construction Permit from the St. Johns River Water Management District, or the appropriate local government pursuant to Chapter 40C-3, Florida Administrative Code. Construction, modification, or abandonment of a well will require modification of the consumptive use permit when such construction, modification, or abandonment is other than that specified and described on the consumptive use permit application form.
Leaking or inoperative well casings, valves, or controls must be repaired or replaced as required to eliminate the leak or make the system fully operational.
The permittee's consumptive use of water as authorized by this permit shall not interfere with legal uses of water existing at the time of permit application. If interference occurs, the District shall revoke the permit, in whole or in part, to curtail or abate the interference, unless the interference associated with the permittee's consumptive use of water is mitigated by the permittee pursuant to a District-approved plan.
The District must be notified, in writing, within 30 days of any sale, conveyance, or other transfer of a well or facility from which the permitted consumptive use is
made or with in 30 days of any transfer of ownership or control of the real property at which the permitted consumptive use is located. All transfers of ownership or transfers of permits are subject to the provisions of section 40C- 1.612.
A District issued identification tag shall be prominently displayed at each withdrawal site by permanently affixing such tag to the pump, headgate, valve, or other withdrawal facility as provided by Section 40C-2.401, Florida Administrative Code. Permittee shall notify the District in the event that a replacement tag is needed.
All submittals made to demonstrate compliance with this permit must include the CUP number 91926-3 plainly labeled on the submittal.
This permit will expire on June 10, 2034.
Maximum annual ground water withdrawals on both the North and East Tracts combined must not exceed 532.9 million gallons (1.46 million gallons per day average).
Maximum annual ground water withdrawals on just the East Tract must not exceed 182.50 million gallons (0.50 million gallons per day average).
Prior to use, wells NT-1, NT-2, NT-3,NT-4, NT-5, NT-6, NT-7, NT-8, NT-9, NT-10, NT-11, NT-12, NT-13, NT-14, NT-15, NT-35, NT-36, NT-37, NT-38, NT-39, NT- 40, NT-41, NT-42, NT-43, NT-44, ET-1, ET-2, ET-3, ET-4, ET-5, ET-6, ET-7, A (Station ID numbers 411770, 411771, 411772, 411773, 411774, 411775, 411776, 411777, 411778, 411779, 411780, 411781, 411782, 411783, 411784, 411804, 411805, 411806, 411807, 411808, 41180, 411810, 411811, 411812, 411813, 10819, 10820, 39777, 39874, 39875, 39876, 39877, 35878), must be equipped with totalizing flow meters. All flowmeters must measure within +/- 5% of actual flow, be verifiable and be installed according to the manufacturer's specifications.
The permittee shall document proper installation of flow meters by submitting a copy of the manufacturer's specifications and photographs of the installed flow meters, or by a site visit by District staff, within 30 days of meter installation.
Total withdrawals from Wells NT-1, NT-2, NT-3,NT-4, NT-5, NT-6, NT-7, NT-8, NT-9, NT-10, NT-11, NT-12, NT-13, NT-14, NT-15, NT-35, NT-36, NT-37, NT-38, NT-39, NT-40, NT-41, NT-42, NT-43, NT-44, ET-1, ET-2, ET-3, ET-4, ET-5, ET- 6, ET-7, A (Station ID numbers 411770, 411771, 411772, 411773, 411774, 411775, 411776, 411777, 411778, 411779, 411780, 411781, 411782, 411783, 411784, 411804, 411805, 411806, 411807, 411808, 41180, 411810, 411811, 411812, 411813, 10819, 10820, 39777, 39874, 39875, 39876, 39877,
35878), must be recorded continuously, totaled monthly, and reported to the District at least every six months from the initiation of the monitoring using Form No. EN-50. The reporting dates each year will be as follows for the duration of the permit:
Reporting Period Report Due Date January-June July 31
July - December January 31
The permittee must maintain all meters. In case of failure or breakdown of any meter or other flow measuring device, the District must be notified in writing within 5 days of its discovery. A defective meter must be repaired or replaced within 30 days of its discovery.
The permittee must have all flow meters on wells NT-1, NT-2, NT-3,NT-4, NT-5, NT-6, NT-7, NT-8, NT-9, NT-10, NT-11, NT-12, NT-13, NT-14, NT-15, NT-35, NT-36, NT-37, NT-38, NT-39, NT-40, NT-41, NT-42, NT-43, NT-44, ET-1, ET-2, ET-3, ET-4, ET-5, ET-6, ET-7, A (Station ID numbers 411770, 411771, 411772, 411773, 411774, 411775, 411776, 411777, 411778, 411779, 411780, 411781, 411782, 411783, 411784, 411804, 411805, 411806, 411807, 411808, 41180, 411810, 411811, 411812, 411813, 10819, 10820, 39777, 39874, 39875, 39876, 39877, 35878) checked for accuracy at least once every 10 years within 30 days of the anniversary date of permit issuance, and recalibrated if the difference between the actual flow and the meter reading is greater than 5%. District Form No. EN-51 must be submitted to the District within 10 days of the inspection/calibration.
The permittee must implement the Water Conservation Plan submitted to the District on April 23, 2014, in accordance with the schedule contained therein.
The lowest quality water source, such as reclaimed water or surface/storm water, must be used as irrigation water when deemed feasible pursuant to District rules and applicable state law.
The permittee's consumptive use shall not adversely impact wetlands, lakes, and spring flows or contribute to a violation of minimum flows and levels adopted in Chapter 40C-8, F.A.C., except as authorized by a SJRWMD-approved minimum flow or level (MFL) recovery strategy. If unanticipated significant adverse impacts occur, the SJRWMD shall revoke the permit in whole or in part to curtail or abate the adverse impacts, unless the impacts are mitigated by the permittee pursuant to a District-approved plan.
The permittee's consumptive use of water as authorized by this permit shall not have significant adverse hydrologic impacts to off-site land uses existing at the time of permit application. If significant adverse hydrologic impacts occur, the District shall revoke the permit, in whole or in part, to curtail or abate the adverse impacts, unless the impacts associated with the permittee's consumptive use of water are mitigated by the permittee pursuant to a District-approved plan.
Prior to withdrawing water to irrigate a pivot area that is used for cattle grazing on the North Tract, the permittee shall construct the stormwater management system (System) authorized by permit IND-083-130588-4 in accordance with the construction sequencing document contained therein. After construction of all or
part of the System, the permittee shall operate and maintain the constructed System in accordance with permit IND-083-130588-4.
The permittee must implement the Nutrient Management Plan for the East Tract dated April 30, 2014, and received by the District on May 2, 2014, in accordance with the schedule contained therein.
The permittee shall submit to the District a compliance report pursuant to subsection 373.236(4), Florida Statutes, ten years from the date of issuance of this permit. Specifically, the compliance report shall be submitted by June 10, 2024. The report shall contain sufficient information to demonstrate that the permittee’s use of water will continue, for the remaining duration of the permit, to meet the conditions for issuance set forth in the District’s rules that existed at the time the permit was issued for 20 years by the District. At a minimum, the compliance report must:
Meet the submittal requirements of section 4.2 of the Applicant’s Handbook: Consumptive Uses of Water, September 16, 2012;
Verify that the permittee is using all available lowest quality sources of water to supply the needs of the project; and
Demonstrate that the allocation is needed for efficient water use.
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 15, 2015 | Agency Final Order | |
| Jul. 15, 2015 | Agency Final Order | |
| Apr. 29, 2015 | Recommended Order | Petitioners failed to meet their burden of proving the case in opposition to the issuance of a Consumptive Use Permit and Environmental Resource Permit for irrigation in support of a grass-fed cattle ranch. Thus, the permits should be issued. |
