STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ST. JOHNS RIVERKEEPER, FLORIDA DEFENDERS OF THE ENVIRONMENT, SILVER SPRINGS ALLIANCE, AND ALICE GARDINER,

vs.

Petitioners,

Case No. 17-0119

SLEEPY CREEK LANDS, LLC, AND ST. JOHNS RIVER WATER MANAGEMENT DISTRICT,

Respondents.

/

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on April 10 through 11, 2017, in Palatka, Florida, before

E. Gary Early, a designated administrative law judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioners: David G. Guest, Esquire

317 East Park Avenue Tallahassee, Florida 32301

John R. Thomas, Esquire

Law Office of John R. Thomas, P.A.

211 Northeast Boulevard, Suite 11 Gainesville, Florida 32601

For Respondent Sleepy Creek Lands, LLC:

John Leslie Wharton, Esquire Dean Mead & Dunbar

215 South Monroe Street, Suite 815 Tallahassee, Florida 32301

Melanie Griffin, Esquire Dean Mead

100 South Ashley Drive, Suite 600 Tampa, Florida 33602

For Respondent St. Johns River Water Management District:

Mary Ellen Winkler, Esquire Karen C. Ferguson, Esquire Avery Sander, Esquire

St. Johns River Water Management District 4049 Reid Street

Palatka, Florida 32177 STATEMENT OF THE ISSUE

The issue to be determined is whether Consumptive Use Permit (CUP) No. 2-083-91926-4 should be authorized as proposed in the December 12, 2016, Consumptive Use Technical Staff Report (TSR) issued by the St. Johns River Water Management District.

PRELIMINARY STATEMENT

On December 12, 2016, the St. Johns River Water Management District (District) issued proposed agency action, in the form of a Consumptive Use Technical Staff Report, for issuance of CUP No. 2-083-91926-4 to Sleepy Creek Lands, LLC (Sleepy Creek or Applicant). The TSR authorized an increase of 1.22 million gallons per day (mgd) of groundwater from the Upper Floridan Aquifer (UFA) over the existing withdrawal allocation of

1.46 mgd for a total allocation of 2.68 mgd for the years 2017 through 2023, followed by a reduction to the current 1.46 mgd allocation for the years 2024 through 2034. The purpose of the CUP is for irrigation of 2,231 acres of improved pasture and other crops, watering of cattle, and commercial/industrial use related to the Sleepy Creek cattle processing facility.

The TSR was published on December 15, 2016. On or about January 9, 2017, after having received an extension of time from the original January 4, 2017, date for filing a challenge to the proposed permit, Petitioners St. Johns Riverkeeper, Florida Defenders of the Environment, Silver Springs Alliance, and Alice Gardiner (Petitioners) timely filed their Petition for Formal Administrative Proceedings challenging the proposed issuance of the CUP modification. The Petition was referred to the Division of Administrative Hearings on January 9, 2017, and the final hearing was scheduled for April 10 through 13, 2017.

On April 5, 2017, the parties filed their Joint Pre-hearing Stipulation (JPS), which included eight stipulated facts, and an identification of issues of law on which there was agreement.

Each of the stipulated facts is adopted and incorporated herein. The JPS also identified the disputed issues of fact and law remaining for disposition. Those issues identified in the JPS are those upon which this case proceeds, with other issues being

waived. Palm Beach Polo Holdings, Inc. v. Broward Marine, Inc.,

174 So. 3d 1037 (Fla. 4th DCA 2015).

On April 7, 2017, the District filed a Motion for Official Recognition of Florida Administrative Code Chapters 40C-1,

40C-2, 40C-8, 40C-21, and 62-40, and the Applicant’s Handbook: Consumptive Uses of Water Chapter 40C-2, F.A.C. (November 3, 2015)(CUP A.H.). That motion was granted at the commencement of the final hearing.

The final hearing was convened as scheduled on April 10, 2017. The permit under review having been issued under the authority of chapter 373, Florida Statutes, the hearing proceeded subject to the modified burden of proof established in section 120.569(2)(p), Florida Statutes. The burden of proof provisions of section 120.569(2)(p) are discussed in the Conclusions of Law herein.

Sleepy Creek and the District offered Joint Applicant/District Exhibits 1 through 84i8, consisting of the permitting file and the TSR without objection by Petitioners, and they were received in evidence. Joint Applicant/District Exhibits 84h through 84i8 are applicable to the issue of the effect of the District’s newly-adopted emergency rules as discussed below.

In support of the prima facie case of its entitlement to the CUP, Sleepy Creek offered the testimony of Adelbert

Bottcher, Ph.D., who was tendered and accepted as an expert in agricultural engineering, surface water modeling, watershed assessment, water quality, and soil science; and William Dunn, Ph.D., who was tendered and accepted as an expert in ecology, with an emphasis in systems ecology, environmental science, botany, and biology. In addition, Sleepy Creek Exhibits 86; 90(a) through (c), (e), (f), (h), (k) through (m), (t), (v), and (w); 99; and 105 were received in evidence. The District offered the testimony of Robert Burleson, P.E., who was tendered and accepted as an expert in hydrology, water resources engineering, and modeling of surface water systems; and Anthony Janicki, Ph.D., who was tendered and accepted as an expert in water quality modeling and assessments, limnology, and freshwater and surface water biological assessments in support of the prima facie case of Sleepy Creek’s entitlement to the CUP. In addition, District Exhibits 121 and 122 were received in evidence.

Upon introduction of the application and relevant material submitted to the District in support of the application, the District’s TSR recommending approval of the CUP, the testimonial evidence of the witnesses, and the additional exhibits, the Applicant and the District met the prima facie case demonstrating the Applicant’s entitlement to the CUP.

Petitioners called as witnesses, both in their initial case in opposition to the CUP and in surrebuttal: Todd Kincaid, Ph.D., who was tendered and accepted as an expert in groundwater modeling, geologic modeling, hydrology, and geology; and Robert Knight, Ph.D., who was tendered and accepted as an expert in environmental science related to aquatic wetlands and terrestrial environments. Petitioners’ Exhibits 2 through 5, 12, 13, 63, 64, 80, 94, 100 through 102, 118, and 124 through

126 were received in evidence.

Sleepy Creek offered no additional evidence in rebuttal.

In its case in rebuttal, the District called as witnesses: Douglas J. Hearn, P.G., who was tendered and accepted as an expert in geology, hydrogeology, and groundwater flow modeling; Peter F. Andersen, P.E., who was tendered and accepted as an expert in groundwater modeling; Varut “Dua” Guvanasen, Ph.D., P.E., who was tendered and accepted as an expert in groundwater flow modeling; Dennis R. Helsel, Ph.D., who was tendered and accepted as an expert in environmental statistics; Jian Jun Di, who was tendered and accepted as an expert in environmental statistics, groundwater and hydrologic data analysis, and time series data analysis; and Richard H. Burklew, Jr., P.G., who was tendered and accepted as an expert in hydrogeology. Dr. Janicki

was also recalled to the stand in rebuttal. District Exhibits 87 through 89, 100, 104, 106, 114, 118, and 123 through 127 were received in evidence.

During the proceedings on April 11, 2017, it was announced that the District’s Governing Board approved Emergency Rule 40CER17-01, Minimum Flows for Silver Springs (the Emergency MFL Rule), and 40CER17-02, Supplemental Regulatory Measures for Silver Springs. The final hearing was recessed on April 11, 2017, and scheduled to be reconvened on May 11, 2017, for the purpose of addressing the effect of the newly adopted emergency rules on the decision to issue or deny the CUP.

On April 13, 2017, the District filed a Second Motion for Official Recognition requesting that the undersigned take official recognition of the emergency rules, which was granted.

On April 28, 2017, Petitioners in this case challenged the Emergency MFL Rule as an invalid exercise of delegated legislative authority. They did not challenge 40CER17-02. The challenge to the Emergency MFL Rule was assigned DOAH Case

No. 17-2543ER. Due to the accelerated statutory timeframe for resolving challenges to emergency rules, the May 11, 2017, date set aside for the completion of this proceeding was instead devoted to the final hearing in DOAH Case No. 17-2543ER.

On June 9, 2017, the parties in this proceeding filed a Stipulated Request to Cancel Continuance of the Final Hearing

indicating that further evidence was unnecessary for the determination of the issues in this proceeding. Based thereon, the record was closed, and the time for filing proposed recommended orders was, at the request of the parties, established as 30 days from the date of filing of the transcript, or by August 16, 2017, whichever was later.

On August 10, 2017, the District filed a Third Motion for Official Recognition of rule 40C-8.031(10) (the MFL Rule), which became effective on June 27, 2017, and which is identical to the Emergency MFL Rule. The Motion was granted. The Supplemental Regulatory Measures for Silver Springs continue to be governed by 40CER17-02 due the necessity of legislative ratification of the permanent rule.

The two-volume Transcript of the final hearing was filed on July 19, 2017. On August 14, 2017, Sleepy Creek filed an Agreed Upon Request for Extension of Time to File Proposed Recommended Orders, requesting an extension until August 25, 2017. The request was granted. The parties filed Proposed Recommended Orders on August 25, 2017, which have been considered in the preparation of this Recommended Order.

Sleepy Creek’s application for licensure is governed by the law in effect at the time the final licensure decision is made. See Lavernia v. Dep’t of Prof’l Reg., 616 So. 2d 53, 54 (Fla.

1st DCA 1993). Therefore, all references to the Florida Statutes shall be to the 2017 Florida Statutes, unless otherwise indicated.

FINDINGS OF FACT

The Parties

1. St. Johns Riverkeeper is a Florida non-profit member corporation whose mission is to conserve and restore the ecological integrity of the St. Johns River and its tributary system. It conducts educational outreach and research concerning the St. Johns River and its tributary system.

   A substantial number of St. Johns River Keeper’s approximately 1,000 members1/ utilize the Silver River, Silver Springs, Ocklawaha River, and St. Johns River for water-based recreational activities, such as kayaking, swimming, fishing, boating, canoeing, nature photography, and bird-watching.

2. Florida Defenders of the Environment is a Florida non-profit member corporation whose mission is to conserve and protect the natural resources in Florida generally, and the waters tributary and distributary to the Ocklawaha River. It conducts educational outreach and research concerning those waters. A substantial number of Florida Defenders of the Environment’s approximately 200 members use and enjoy the

   
   

   St. Johns River, the Silver River, Silver Springs, and the Ocklawaha River for boating, fishing, wildlife observation, and other water-based recreational activities.

3. The Silver Springs Alliance is a Florida non-profit member corporation whose mission is to protect, preserve, and restore the ecological integrity of Silver Springs, as well as other Florida springs. It conducts educational outreach and research concerning the River and its tributary system. A substantial number of Florida Springs Alliance’s approximately

   75 members use and enjoy Silver Springs, the Silver River, the Ocklawaha Aquatic Preserve, and their associated watersheds in their educational and outreach activities, as well as for various recreational activities including boating, swimming, fishing, birding, photography, art, nature and wildlife observation, and nature-based recreation.

4. Alice Gardiner is a resident of Marion County, who lives less than 10 miles from Silver Springs and is a board member of Silver Springs Alliance. For at least the past

   25 years and up until the present, she has regularly and frequently used and enjoyed Silver Springs and related distributary waters, including Silver River, the Ocklawaha River, and the St. Johns River for boating, fishing, wildlife observation, and other water-based recreational activities.

   
   

5. Sleepy Creek Lands, LLC (Sleepy Creek or Applicant), is an entity registered with the Florida Department of State to do business in the state of Florida. Sleepy Creek owns approximately 21,000 acres of land in Marion County, Florida, which includes the North Tract which is the receiving property for the water to be withdrawn pursuant to the proposed CUP.

6. The Sleepy Creek North and East Tracts cattle farm project is located in northern Marion County northwest of the community of Fort McCoy. The project consists of two separate non-contiguous parcels (the northern portion of the Sleepy Creek property and the Ft. McCoy/Jones Turf-Grass Farms). The North Tract project area that is the subject of this application consists of a total of approximately 8,218 acres. The improved pasture to be irrigated by the proposed 1.22 mgd withdrawal consists of 2,231 acres served by a center-pivot irrigation system within the North Tract.

7. The District is a water-management district created by section 373.069(1). It has the responsibility to conserve, protect, manage, and control the water resources within its geographic boundaries. See § 373.069(2)(a), Fla. Stat.

   The Consumptive Use Permit

   
   

8. On December 14, 2016, the District issued a notice of intent to issue Individual Consumptive Use Permit

   (CUP) 2-083-91926-4.

   
   

9. The permit application requests a modification of an existing agricultural use permit with a request for an increase in groundwater allocation of 1.22 mgd -- from 1.46 mgd to

   2.68 mgd -- in groundwater allocation to: 1) fully meet the agricultural demand previously demonstrated in permit

   number 2-083-91926-3, and 2) supply the cattle processing facility. For years 2024 through 2034, the permitted allocation will be reduced to the currently permitted allocation of

   1.46 mgd. No change in duration is proposed.

   
   

   Silver Springs and the Silver River

   
   

10. Silver Springs is located approximately six miles northeast of Ocala, at the western edge of the Ocklawaha River valley. Silver Springs forms the headwaters for the Silver River, a spring run approximately five miles in length, at which point it becomes a primary input to the Ocklawaha River.

11. Silver Springs consists of at least 30 different springs, with 69 vents in the bed or in coves at the edges of the upper 3,900 feet of the Silver River, collectively called the Silver Springs Group. The largest of the spring vents is Mammoth Springs (also called the Silver Main Spring), which has multiple vents in the main pool that discharge nearly half of the total flow of Silver River.

    
    

12. Silver Springs and the Silver River are Outstanding Florida Waters. In addition, Silver Springs was designated in 2016 as an Outstanding Florida Spring.

13. Silver River State Park, established in 1987, encompasses approximately 4,230 acres and is designated for public recreation and conservation. Silver Springs has been a major tourist destination in Florida for well over 100 years, and has been widely known for its glass bottom boat rides from which the numerous springs and the associated aquatic life may be viewed. Although tourist attendance has declined in recent years, the park typically receives a million or more visitors annually, generating an annual estimated economic impact of approximately $65 million.

14. Silver Springs flow is derived from the Floridan aquifer system, and is supplied through a network of fractures and solution channels in the limestones and dolomites of the Floridan aquifer. Groundwater flow to Silver Springs emanates from two areas of high potentiometric levels, one located in the north in the lakes region of Alachua, Bradford, Clay, and Putnam counties and the other in the south centered around Polk County. Groundwater flows from these areas toward Silver Springs.

15. Since the first major studies of Silver Springs were conducted in the 1950s, the ecosystem of Silver Springs has undergone changes. Of relevance to this proceeding is the

    
    

    increase in the abundance of tapegrass, a rooted aquatic grass with blades about three to five feet long and a half inch wide, particularly in the lower reaches of the Silver River, along with filamentous algae and, recently, hydrilla near the confluence of the Silver River with the Ocklawaha River.2/ The increase in vegetation has likely created a damming effect, suppressing some of the flow from the Silver Springs Group, and allowing increased water levels from the lesser spring flows.

16. Over a period of decades, the average flow in Silver River has declined by roughly 32 percent, though the figure could be as high as 40 percent.3/ The District has attributed the decrease to flow suppression from the proliferation of vegetation in the Silver River; a substantial rainfall deficit from the 1970s to 2000, without a corresponding rainfall surplus since; and groundwater withdrawals. The District estimated the decrease in flow attributable to groundwater pumping as

    3.5 percent of the total decline.

    
    

17. Dr. Knight argued passionately that the rate of flow and the velocity of the water in the river is controlling the growth of the plants, and not the other way around.4/ However, he admitted that he had not studied the relationship between springflows and the growth of vegetation as independent scientific research.

    
    

18. Dr. Knight was equally confident that groundwater pumping played a more significant part in the overall reduction in spring flows than estimated by the District, and that “the effect of this permit and this additional withdrawal from the Floridan aquifer will have an additional impact on a system that's already well past the point of significant harm.” However, he could not quantify either the reduction in flow at Silver Springs attributable to Sleepy Creek's allocation, or any environmental impacts from that allocation, suggesting that such quantification is within the province of the District and its modelling tools.

    Northern District Groundwater Model

    
    

19. The disputed issues in this case center almost entirely on the District’s Northern District Model version 5 groundwater model (NDMv5). As stated by Petitioners in their Proposed Recommended Order, “[a] new model known as [NDMv5] was developed in 2016, which indicated that additional water withdrawals causing a flow reduction of 17 cfs in the Silver River would not cause significant harm to water resources or the ecology. The instant permit challenge concerns the validity of [NDMv5].” Petitioners further stated that “[b]ecause this

    17 cfs of freeboard was based on [NDMv5], and because the Petitioners’ case seeks to show that [NDMv5] contains a major error that dramatically overstates the amount of recharge into

    
    

    the Silver Springs springshed, the central issue . . . in this case is whether [NDMv5] provides reasonable assurances that the proposed CUP at issue will in accordance with the Minimum Flow established for Silver River.”

20. Impacts from the proposed Sleepy Creek withdrawal on local and regional groundwater levels and flows and the impact from groundwater pumping on Silver Springs flows were developed using NDMv5. NDMv5 is the most current version of a continuously updated model originally developed by the District. NDMv5 was developed collaboratively between the District and the Southwest Florida Water Management District (SWFWMD). The SWFWMD used previous versions of the Northern District Model to set MFLs for six spring systems and the Withlacoochee River.

21. NDMv5 is not a “new model” as described by Petitioners, but is part of an ongoing process to evaluate and incorporate data as it becomes available, a process designed to allow as accurate a depiction of natural processes occurring beneath the ground as possible. NDMv5 is an update to Northern District Model version 4 and incorporates updated hydraulic and hydrogeologic information, including the USGS flow record for Silver Springs, data from a comprehensive Aquifer Performance Test performed on the Sleepy Creek property, and data with respect to the UFA and discharge from submerged springs in the Ocklawaha River obtained during the 2015 drawdown of the Rodman

    
    

    Reservoir. NDMv5 has been subject to peer review designed to identify and, if possible, account for perceived flaws and inconsistencies.5/ The NDMv5 model is the most up-to-date tool available for determining the subsurface conditions of the model domain.

    Aquifer Performance Tests

    
    

22. An aquifer consists of different layers of differing hydrogeologic qualities. Layers of rock of varying porosity capable of holding and transmitting water are interspersed with layers of less permeable materials that act to separate and confine the water-bearing features of the aquifer.

23. Site-specific data regarding the characteristics of the aquifer beneath the Sleepy Creek property, which data were incorporated into NDMv5, was obtained through a series of aquifer performance tests (APT). Short term APTs were performed in March and October 2012, in conjunction with the CUP application for the earlier phase of the permit at issue.

24. A more comprehensive APT was conducted in 2014 for the purpose of refining the North Central Florida groundwater flow model and other models in development by the District. The 2014 APT was comprehensive in scope, and yielded detailed information regarding the characteristics of the aquifer in the vicinity of the Sleepy Creek property. The APT extended over 12 days, at a constant pumping rate of 2,400 gallons per minute. The APT

    
    

    included 19 wells subject to monitoring, which included the test well itself. The majority of the 18 monitoring-only wells were in the UFA, and varied in distance from 50 feet to 41,245 feet from the test well.

25. The intent of 12-day APT was to gain a better understanding of the hydraulic characteristics of the confining and semi-confining units above and below the UFA, as well as the spatial distribution of the UFA transmissivity.

26. Transmissivity is calculated as the product of hydraulic conductivity and thickness of the aquifer, and defines the rate at which water flows through the aquifer. Thus, accurate data as to the transmissivity values at a particular location within a study area results in a more accurate simulation of the effects of pumping on the aquifer.

27. The transmissivity values derived from the 12-day APT were orders of magnitude less than what was built into the District’s existing models, both the North-Central Florida Model and the Northern District Groundwater Flow Model (NDM). This lower transmissivity value in the vicinity of Sleepy Creek’s property means that the consumptive use proposed by Sleepy Creek will have less impact on the flow of Silver Springs.

28. The preponderance of the evidence established that NDMv5 is the best means available for not only establishing the

    
    

    relationship between pumping and flows, but also for estimating future impacts due to projected pumping in the future.

    Alleged Flaws in NDMv5

    
    

29. Petitioners identified three flaws in NDMv5 that they argue substantially compromise the validity of the model, and the calculation of available “freeboard” calculated by the model and incorporated into Minimum Flows Determination that forms the basis for the MFL Rule, the Emergency Supplemental Regulatory Measures for Silver Springs, and the Prevention Strategy for the Implementation of Silver Springs Minimum Flows and Levels.

    Western Boundary - Gulf of Mexico/Aquifer Interface

    
    

30. As explained by Petitioners in their Proposed Recommended Order, NDMv5 “contains a major error in the model domain on the West Coast, west of the Springs region, between Homosassa Springs and Weeki Wachee Springs . . . this error takes place in a part of the model domain distant from the Silver Springs springshed and as such, does not affect modeling outcomes concerning Silver Springs. However, it is such an extremely large error that it impeaches the process by which [NDMv5] was developed and calibrated.”

31. The western boundary is, according to Dr. Kincaid, classified in the model's water budget as flux or flow through the constant head boundaries, and represents inflows and outflows through the model domain. Constant head boundaries are

    
    

    the simulation of the boundary between the fresh water Floridan Aquifer and the salt water Gulf of Mexico. That flux is limited to the model polygons between Homosassa Springs and Weeki Wachee Springs, an area approximately 40 miles from Silver Springs.

32. The volume passing back and forth across the NDMv5 western coastal boundary is simulated as being in the range of

    2.4 x 1013 cubic feet per day, which is acknowledged by all involved as not being representative of the actual volume of water flowing across the boundary. However, the model is simulating water moving down in one layer and then forcing water up into the other layer. Dr. Kincaid recognized that “the process is plausible,” but that the value was “silly.”

33. The District explained that the dramatically high figure was used in an effort to account for the difference in density between saltwater, which is pushing inland, and the freshwater which is flowing out from the inland and pressing against the saltwater. The model underlying NDMv5 assumes a single density fluid.

34. Mr. Anderson provided a very detailed explanation of the calculations, based on the difference in saltwater and freshwater density that led to the very large and seemingly incongruous 2.4 x 1013 cubic feet per day figure. He established that the balance causes the saltwater interface to be where it is, and creates problems as to how to characterize the process.

    
    

    As stated by Mr. Anderson, “[t]here's flow from the subsurface beneath the ocean. It's converging and mixing and moving up and discharging into the Gulf. The basis for it is real, but it is, as I've indicated, an approximation to a real situation that occurs and the approximation is made because of some of the limitations of this single-density model.” Mr. Anderson established that the number, though not the amount actually moving back and forth, is representative of the physical process occurring at the boundary, but admitted that NDMv5 would not be the tool to quantify that boundary amount. However, he concluded by persuasively opining that the NDMv5 coastal boundary conceptualization would not affect predictions of drawdown and springflow related to the proposed Sleepy

    Creek CUP.

    
    

35. As indicated previously, the parties are in agreement that the western boundary modeling issue does not affect modeling outcomes concerning Silver Springs or its springshed. The preponderance of the evidence demonstrates that the boundary parameters were not a mistake that suggests a lack of care or precision that compromises the accuracy and effectiveness of NDMv5. To the contrary, it was a calculated measure to approximate the effects of fluids of differing densities. Although it resulted in a figure that does not reflect the physical reality of conditions in the model’s coastal polygon,

    
    

    it is not an error in the model, but is a “caution light” to anyone who might be evaluating conditions at the coastal boundary. The modeled effects were not made without forethought, and do not affect the overall validity of NDMv5.

    Northern Boundary - Silver Springs Springshed

    
    

36. A springshed is the area that captures recharge and contributes flow to a spring. When one is trying to simulate groundwater flow to springs or impact to springflow from actions taking place in the aquifer, one of the first steps is to simulate the springshed.

37. A springshed is similar in nature to the watershed of a river. A watershed boundary is defined by fixed,

    two-dimensional topographic contours that channel flow to a surface water feature such as a stream.

38. A springshed boundary is the point at which groundwater elevation contours create equipotentials, which are divides based on groundwater elevation from which groundwater would be expected to flow perpendicularly in either direction to a point of discharge -- in this case a spring. Unlike the watershed of a river, a springshed is three-dimensional, with water moving not only directionally along a single plane, but vertically between different layers of the subsurface hydrogeologic formations. Groundwater flows are not constrained by surficial topography, and water level contours can be

    
    

    different in different layers. Of the multiple layers that form the subsurface hydrology of a springshed, the surficial aquifer, or water table, most closely mimics the surface topography, though on a more subdued basis.

39. Groundwater levels change seasonally and with time, and are affected by factors including rainfall and groundwater extraction. Therefore, springshed boundaries may expand, contract, or change accordingly.

40. Springshed boundaries can be identified by various methods including, for purposes relevant to this proceeding, groundwater modeling.

41. The springshed boundary at the north end of the Silver Springs springshed is generally the divide between groundwater flow that goes towards Silver Springs to the south and flow that goes towards the City of Gainesville, and the City of Gainesville municipal wellfield, to the north. The boundary line should be the point at which there is no flow into or out of the model domain.

42. Dr. Kincaid testified that his review of NDMv5 showed there was flow across the boundary and into the Silver Springs springshed. The data set shows water flowing to Gainesville, but NDMv5 shows water from the same area flowing to Silver Springs, suggesting a disagreement between the data. Therefore, he opined that the model has not simulated the springshed

    
    

    because there is unaccounted flow into the simulated springshed, which he characterized as a “fatal flaw.” In his opinion, the additional water available to Silver Springs upon which the freeboard was calculated, water determined to be available for consumption, is the result of the boundary error, and that the

    17 cubic feet per second (cfs) of available freeboard is not actually available.

43. On cross-examination, Dr. Kincaid clarified that the query into NDMv5 was a “holistic” query. It was not intended to specify that groundwater was entering the model domain through model layers representing the UFA. Rather, the inquiry was simply how much flow is coming across the polygon depicting the springshed boundary, but did not specify the layer. He testified specifically that “I do not know which layer of the model it came from.”

44. Dr. Guvanasen testified that the “extra” water discussed by Dr. Kincaid came from the northwest boundary of the model domain in the surficial aquifer. That area has a topographically sloping elevation that slopes into the model area. Because the surficial aquifer is generally a subdued reflection of topographical elevation, the surficial aquifer is expected to slope towards the model area. Thus, the modeled

    
    

    conceptualization of the area showed water flowing into the model area through the surficial aquifer, while depicting the UFA as a no-flow type.

45. To further address Dr. Kincaid’s concern regarding the northern boundary, Dr. Guvanasen performed a water budget analysis, which showed a total influx of water from all layers into the model domain of 850 cfs, but influx into the UFA layers of 750 cfs, which is consistent with the model UFA input parameters. He testified that the 850 cfs figure is based on recharge calculated from the top of the surficial aquifer, while the 750 cfs figure is based on infiltration at the top of

    Layer 3, which is the top of the UFA. Thus, the “extra” 100 cfs does not contribute to the UFA groundwater, but is subject to lateral flow in the surficial aquifer and, ultimately, discharge through a surface water feature such as a stream.

46. Based on the foregoing, the northern boundary of NDMv5 is not inaccurate, but reflects the distinction between the surficial aquifer and the UFA.

    Transmissivity - Marion County

    
    

47. Dr. Kincaid expressed his concern that NDMv5 transmissivity values in Marion County deviated from APT values reported by the U.S. Geological Survey in its 2012 map of transmissivity of the Floridan aquifer.

    
    

48. For eight of the nine counties depicted in NDMv5, the model transmissivity values were very close to the USGS values. However, in Marion County, the USGS values derived from 5 of the

    19 APT test wells deviated substantially from the NDMv5 transmissivity values. Dr. Kincaid’s concern was “not necessarily just the deviation in the values, but it's also the pattern. So when we see this type of deviation, it indicates that there's something about this area that required the model to deviate or the modelers to deviate from the data in order to achieve what was termed or deemed a desirable or an acceptable result. . . . -- it's not necessarily with the deviation from the values, but it's in the selective deviation from the values.”

49. In assessing the basis for the “selective deviation,” Mr. Hearn reviewed the APTs associated with the five deviating wells in Marion County that largely formed the basis for

    Dr. Kincaid’s opinion. He offered convincing testimony that the APTs from which the values were derived were unreliable due to a number of factors, including the short duration of the APTs, which were shorter than the recommendations in the CUP A.H., the failure of the test wells to fully penetrate the aquifer, the nature of the APTs, and the lack of information regarding observation wells. Mr. Hearn indicated that the USGS database

    
    

    for one of the outlying tests failed to provide any information as to the duration or type of the APT.

50. The exclusion of the deviating wells from the model values was not arbitrary, but was done to ensure scientific reliability. In Mr. Hearn’s opinion, the exclusion of the USGS transmissivity data derived from the five outlying tests from the NDMv5 transmissivity values for Marion County did not compromise the model. His testimony in that regard was persuasive.

    NDMv5 Conclusion

    
    

51. The preponderance of the evidence adduced at the hearing demonstrates that the “flaws” identified in the NDMv5 model constitute a conscious effort to model complex processes occurring at the coastal saltwater/freshwater interface, an accurate depiction of influx into the UFA at the northern boundary, and an effort to ensure the accuracy of the NDMv5 transmissivity values. The alleged flaws do not compromise the validity of the model or the calculation of available “freeboard” calculated by the model, and as such NDMv5 remains the best available tool for establishing the relationship between pumping and flows, and for estimating future impacts due to projected pumping in the future.

    
    

    Hydrologic Effects

    
    

52. To evaluate whether the proposed CUP would cause harmful hydrologic alterations to wetlands, other surface waters, or water resources of the area, the District evaluated the following characteristics that would be sensitive to hydrologic change: (1) fish and wildlife habitat and the passage of fish and manatees, (2) transfer of detrital material,

    (3) algal scour, (4) filtration and absorption of nutrients and other pollutants, and (5) sediment movement. The goal was to evaluate how flow reductions in the Silver River would affect those characteristics.

53. Environmental, hydrological, and topographical data6/ was used to establish the flow or stage, and the frequency, necessary to support or sustain each of the characteristics.

54. Five stage/flow conditions were evaluated: the baseline or observed condition; a no-pumping condition in which pumping impacts were added back into the baseline record; and flow reductions of 5 percent, 10 percent, and 15 percent as measured against the no-pumping condition.

55. The frequency of those critical events under the

    
    

    no-pumping scenario was determined and used to evaluate how the frequency changed through each flow reduction scenario.

    
    

    Habitat Values

    
    

    Passage of Fish

    
    

56. The water elevation necessary to support the passage of fish was set at 0.8 feet over 25 percent of the channel width, which was determined to meet the criteria for bass, gar, and larger fish that inhabit the Silver River. A frequency analysis performed for each of the flow reduction scenarios demonstrated that stage elevations did not fall below the 0.8 foot level at any section under any flow reduction scenario.7/

    Water Velocity

    
    

57. Although there was no evidence that particular water velocities were necessary for any observed species to complete their life cycles, water velocity can affect aeration, nutrient delivery, and waste removal. The modeling performed demonstrated there is little difference in water velocity between the no-pumping flow scenario and flow reductions of

    5 percent, 10 percent, and 15 percent. Thus, channel velocities required to protect fish and wildlife habitat are protected under any pumping regime.

    Floodplain Inundation

    
    

58. Floodplain inundation is important for feeding, reproduction, and refuge of fish species, and for wading bird feeding. Essential to maintaining the floodplain habitat are the organic soils that support wetland vegetation, and which

    
    

    require periodic inundation to prevent their oxidation.

    
    

59. Spawning and support of juvenile fish populations generally require 30 continuous days of seasonal floodplain inundation. Flow and stage time series for each of the four transects, and critical stage elevations were analyzed. Although hydration of the floodplain occurred on fewer days under the 5-percent, 10-percent, and 15-percent flow reduction scenarios, Dr. Janicki opined that a 5-percent reduction remained protective of the ability of fish to seasonally access the floodplain for the requisite duration. His opinion was supported by competent, substantial evidence, and was not disputed.

60. Similarly, critical stage data was evaluated to assess floodplain hydration for maintaining organic soils. Rather than looking at periods during which organic soils are inundated, thus allowing for seasonal fish access, an assessment was made of dewatering events during which the flow is not adequate to inundate the organic soils in the floodplain, thus allowing soils to oxidize. In order to maintain organic soils, inundation to an elevation of 0.3 feet below the soil surface for at least 180 days per year is required, which do not have to be continuous days. That critical stage was established across

    
    

    a range from 39.77 feet NGVD at Transect T9, closest to Silver Springs, to 37.77 feet NGVD at Transect T3, closest to the Ocklawaha River.

61. Under each of the flow reduction scenarios, there was an increase in the number of dewatering events. With the question being whether the decrease was such as to lead to lack of protection, Dr. Janicki was again of the opinion that although there is an increase in dewatering events from a

    5-percent flow reduction, the critical number of events was not increased to the point where those soils would be put at risk. His opinion was, again, supported by competent, substantial evidence, and not disputed.

    Manatee Passage

    
    

62. Silver Springs provides a warm-water refuge for manatees during winter months when river temperatures can fall below 60 degrees Fahrenheit. Water temperatures in the Silver River remain at 69 degrees virtually year-round. Manatee passage requires a water depth of five feet throughout the channel to the boil, which is the destination for manatees.

    A frequency analysis performed for each of the flow reduction scenarios demonstrated that stage elevations did not fall below the minimum level at any section under any flow reduction scenario.

    
    

    Transfer of Detrital Material

    
    

63. Detritus is organic material derived from dead plant material, largely particulates and dissolved organic carbon, which is fed upon by microbes and aquatic insects at the bottom of the food web. Those organisms become food for fish and wildlife up the food chain.

64. Detrital material largely accumulates in the floodplain. Transfer of detrital material in the floodplain and to the channel is necessary to sustain the food web.

65. In-channel velocities were found to be generally consistent and adequate to transfer detrital material under any of the flow reduction scenarios.

66. A frequency analysis was performed to determine the frequency at which water levels would inundate the Silver River floodplain and allow accumulated detritus to be transferred out of the floodplain and become available for consumption. The analysis was performed to evaluate how often the floodplain would be inundated for 7-day durations and for 30-day durations under each of the five stage/flow conditions.

67. The frequency analysis indicates that all areas of the floodplain experience periodic inundation which allows detrital transfer to the channel to occur under the three flow reduction scenarios for both 7-day and 30-day durations.

    
    

68. On an average, based on the number of occurrences over

    
    

    100 years, those inundation events occur once every 1.3 to

    
    

    3.5 years under the no-pumping scenario, depending on the location along the river reach. Under a 5-percent flow reduction, that frequency of occurrence decreases to 1.5 to

    5 years. Mr. Burleson testified that the decreased frequency at the 5-percent reduction would not cause a significant risk of inadequate contact with the floodplain for detrital material, but that the decreased frequency associated with a 10-percent reduction of 2.2 to 6.7 years would negatively affect detrital transfer. His opinion was supported by competent, substantial evidence, and was not disputed.

    Algal Scour

    
    

69. Studies performed in rivers and spring systems in Florida suggest that flow velocity of below 0.82 feet per second (ft/sec) allows for colonization of river bottoms by submerged aquatic vegetation, including algae. Conversely, flow velocity of 1.1 ft/sec restricts algal abundance to a minimal level. There was a consensus of opinion that minimization of algae in the main channel of the Silver River was desirable.

70. The average channel flow velocity in the Silver River exceeds the algal flushing threshold of 1.1 ft/sec only within the immediate vicinity of the boil, and at the confluence of the Silver River and the Ocklawaha River. Velocities were generally

    
    

    uniform at each measuring station, and at spring discharge rates ranging from 1008.8 cfs to 429 cfs, for the no-pumping condition, baseline, and 5-percent, 10-percent, and 15-percent flow reductions, with the difference between the scenarios at any given station of a few hundredths of a cfs. As a result, a preponderance of the evidence establishes that the algal scour capacity of the Silver River will not change significantly under any flow reduction scenario.

    Filtration and Absorption of Nutrients and Other Pollutants

    
    

71. Filtration and absorption of nutrients and other pollutants are natural system processes. Filtration consists of the physical, chemical, and biological processes that, in spring systems, are largely a function of soil porosity. Absorption is a chemical process by which nutrients and pollutants are adsorbed to sediments, or taken up by microorganisms or vegetation.

72. The rates at which nutrients and pollutants are filtered and/or absorbed are a function of the time during which water is in contact with soils, sediments, or vegetation. Given that in-channel velocities do not materially change over any of the five stage/flow conditions, the filtration and absorption capacity of the Silver River channel, including denitrification, would not be affected.

    
    

73. Filtration and absorption of nutrients and pollutants also occur in the floodplains adjoining the Silver River, and can be affected by a reduction in the frequency and duration of inundation events.

74. The results of the frequency analysis as described above were reviewed to evaluate the periodic inundation for 14-day and 30-day durations to determine whether inundation

    events are expected to allow filtration and absorption to occur in the floodplains. The average overflow occurrence interval under the no-pumping condition, calculated as the number of events over a 100-year period, was 1.4 years to 3.5 years depending on the location along the river reach. That occurrence interval decreased to 1.6 years to 5 years under the 5-percent flow reduction scenario. The occurrence interval decreased to 2.4 to 6.7 years under the 10-percent flow reduction scenario, and to 3.1 to 12 years under the 15-percent flow reduction scenario.

75. Mr. Burleson concluded that the occurrence interval at the 5-percent reduction from the no-pumping condition would not create a significant risk to the filtration and absorption capacity of the Silver River floodplain, a conclusion not extended to the higher flow reduction scenarios. His opinion was supported by competent, substantial evidence, and was not disputed.

    
    

    Sediment Movement

    
    

76. Flow reduction in the Silver River should not cause a substantial change in the nature of sediment transport regime, e.g., net change in erosion or sedimentation. The focus of the analysis is limited to in-channel velocity since flow velocity in floodplains is generally not sufficient for the transport of inorganic sediments. If the frequency of critical flow velocity events is not substantially changed under the flow reduction scenarios, sediment transport will not be affected.

77. As described previously, there are very small differences in velocities across the flow reduction scenarios. Flow events of a magnitude and duration critical for maintaining current sediment transport occurs, on average, every two years under both the no-pumping scenario and the 5-percent reduction scenario. As such, a 5-percent reduction from the no-pumping condition would not create a significant risk to the sediment transport regime of the Silver River.

    Conclusion

    
    

78. Based on the foregoing, a 5-percent flow reduction would not put the hydrologic characteristics of Silver Springs and the Silver River at risk.

79. Petitioners offered evidence in support of their assertion that the proposed CUP will have an adverse impact on the ecological health of Silver Springs. Much of the evidence

    
    

    was observational, was based on an opinion that “there should be no increase in groundwater pumping in the basin and in the surrounding area,” and included no evidence to quantify the environmental impacts of Sleepy Creek’s specific withdrawals on Silver Springs.

80. Under the legislatively required burden of proof discussed in the Conclusions of Law herein, the evidence presented by Petitioners as to the hydrologic effects of the proposed CUP was not sufficient to outweigh that presented by Respondents.

    Modeling Scenarios

    
    

81. To assess impacts from the proposed withdrawals, NDMv5 simulations were performed by first removing the existing permitted Sleepy Creek withdrawal of 1.46 mgd from the current existing allocations to create a baseline condition, and then adding the full allocation of 2.68 mgd back in to measure the effect of the full Sleepy Creek permitted withdrawal. The simulated impacts were then used to determine the proposed CUP’s individual impacts; the cumulative impacts of all proposed uses; and the year in which the cumulative impact of all allowable uses would exceed the 5-percent flow reduction at which adverse effects, as described above, would be predicted.8/

    
    

    Individual Impacts

    
    

82. Using the applicant’s total requested allocation of

    
    

    2.68 mgd, the model predicted a reduction in flow of 0.76 cfs at Silver Springs from the proposed withdrawal.

    Cumulative Impacts

    
    

83. To conduct an analysis of the cumulative impact of all permitted users, NDMv5 was used to simulate flow at Silver Springs in a predevelopment no-pumping condition, which established the baseline. The no-pumping condition was then compared to a simulation that assessed the impact of all currently permitted allocations assuming all users pumping at full capacity by 2035, and all permits expiring in the interim being renewed at existing allocations. The modeled results indicate a 2.5 percent flow reduction attributable to groundwater pumping in 2014, and a 7.4-percent reduction in 2035. Linearly interpreting those results led to a conclusion that an exceedance of the 5-percent flow reduction threshold at which adverse effects could begin was predicted in 2024.

    Exceedance

    
    

84. Based on the foregoing, the withdrawals authorized by the proposed CUP will not result in adverse effects to Silver Springs and the Silver River, or to water resources, through 2023. Thus, the proposed condition of the CUP allowing withdrawals of 2.68 mgd average through 2023, with a return to

    
    

    the previously permitted 1.46 mgd for the duration of the CUP is appropriate and supported by the evidence.

    Compliance with MFL and Supplemental Regulatory Measures for Silver Springs

    
    

85. Although the Minimum Flows and Levels had not been adopted at the time the District issued proposed agency action on the Sleepy Creek CUP amendment, the total proposed allocation of 2.68 mgd was assessed for compliance with the Draft Silver Springs Emergency MFL Rule and Supplemental Regulatory Measures for Silver Springs. The evidence adduced at the hearing also measured impacts against the pending Emergency MFL Rule.

86. The MFL Rule, the Supplemental Regulatory Measures for Silver Springs, and the supporting technical publications in support thereof establish that, using the most constraining minimum flow parameter, there is water availability, or freeboard, of 17 cfs based on 2010 levels.

87. As set forth in the Hydrological Effects section above, it was determined that a 5-percent flow reduction would not result in adverse hydrologic impacts to Silver Springs and the Silver River. Evidence was adduced at the hearing to establish that effects of a 5-percent flow reduction from 2010 levels would result in available freeboard of 12 cfs, less than the available 17 cfs freeboard established by the MFL Rule.

    
    

88. Petitioners, though asserting that additional groundwater withdrawals would have adverse effects on Silver Springs and the Silver River in general, presented no persuasive evidence that the proposed CUP would violate any specific parameter of the MFL Rule as adopted. Likewise, Petitioners presented no evidence regarding Sleepy Creek’s compliance with the Supplemental Regulatory Measures for Silver Springs.

    Public Interest

    
    

89. The preponderance of the evidence in this proceeding, demonstrates that the proposed use of water by Sleepy Creek does not interfere with and is not adverse to the rights and claims to the use of groundwater on behalf of people in general. The CUP serves a beneficial use of advancing the agricultural use of Sleepy Creek’s lands, and has no proven detrimental impacts that would be adverse to the overall collective well-being of the people or to the water resource in the area, the District, and the state.

90. The preponderance of the evidence in this proceeding further demonstrates that the proposed use of water by Sleepy Creek is efficient, that Sleepy Creek established a need for the water requested, that its use is for a legitimate and lawful purpose, and is not wasteful. Furthermore, the water proposed for use is available for a beneficial purpose, and the proposed use of the source meets all of the District’s criteria.

    
    

    CONCLUSIONS OF LAW

    
    

    Jurisdiction

    
    

91. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat.

92. Pursuant to chapter 373, part II and chapter 40C-2, the District has regulatory jurisdiction over the CUP permit application.

    Standing

    
    

93. The facts stipulated by the parties are sufficient to demonstrate that the substantial interests of the Petitioners would be affected by the proposed agency action.

94. Standing under chapter 120 is guided by the two- pronged test established in the seminal case of Agrico Chemical

    Corporation v. Department of Environmental Regulation, 406 So. 2d 478 (Fla. 2d DCA 1981). In that case, the court held that:

    We believe that before one can be considered to have a substantial interest in the outcome of the proceeding, he must show

    1. that he will suffer an injury in fact which is of sufficient immediacy to entitle him to a section 120.57 hearing and 2) that his substantial injury is of a type or nature which the proceeding is designed to protect. The first aspect of the test deals with the degree of injury. The second deals with the nature of the injury.

       
       

       Id. at 482.

       
       

95. Agrico was not intended as a barrier to the

    
    

    participation in proceedings under chapter 120 by persons who are affected by the potential and foreseeable results of agency action. Rather, “[t]he intent of Agrico was to preclude parties from intervening in a proceeding where those parties’ substantial interests are totally unrelated to the issues that are to be resolved in the administrative proceedings.”

    Mid-Chattahoochee River Users v. Fla. Dep't of Envtl. Prot.,

    
    

    948 So. 2d 794, 797 (Fla. 1st DCA 2006)(citing Gregory v. Indian River Cnty., 610 So. 2d 547, 554 (Fla. 1st DCA 1992)).

96. The standing requirement established by Agrico has been refined, and now stands for the proposition that standing to initiate an administrative proceeding is not dependent on proving that the proposed agency action would violate applicable law. Instead, standing requires proof that the petitioner has a substantial interest and that the interest reasonably could be affected by the proposed agency action. Whether the effect would constitute a violation of applicable law is a separate question.

    Standing is “a forward-looking concept” and “cannot ‘disappear’ based on the ultimate outcome of the proceeding.” . . . When standing is challenged during an administrative hearing, the petitioner must offer proof of the elements of standing, and it is sufficient that the petitioner demonstrate by such proof that his

    
    

    substantial interests “could reasonably be affected by . . . [the] proposed activities.”

    
    

    Palm Beach Cnty. Envtl. Coal. v. Fla. Dep't of Envtl. Prot.,

    
    

    14 So. 3d 1076, 1078 (Fla. 4th DCA 2009) (citing Peace River/Manasota Reg'l Water Supply Auth. v. IMC Phosphates Co.,

    18 So. 3d 1079, 1083 (Fla. 2d DCA 2009), and Hamilton Cnty. Bd. of Cnty. Comm'rs v. State, Dep't of Envtl. Reg., 587 So. 2d 1378

    (Fla. 1st DCA 1991)); see also St. Johns Riverkeeper, Inc. v.

    
    

    St. Johns River Water Mgmt. Dist., 54 So. 3d 1051, 1055 (Fla. 5th DCA 2011) (“Ultimately, the ALJ's conclusion adopted by the Governing Board that there was no proof of harm or that the harm would be offset went to the merits of the challenge, not to standing.”).

97. The question for determination as to the first prong of the Agrico test is whether Petitioners have alleged injuries in fact of sufficient immediacy from the effects of the CUP on Silver Springs to entitle them to a section 120.57 hearing. Given the adverse effects of the proposed withdrawals on the flows and levels of Silver Springs, effects that, if proven, would cause damage to the ecological values and functions of Silver Springs, and of Petitioners’ use and enjoyment of Silver Springs, the stipulated facts constitute an adequate demonstration of an “injury in fact which is of sufficient immediacy to entitle [Petitioners] to a section 120.57 hearing.”

    
    

98. Petitioners meet the second prong of the Agrico test,

    
    

    that is, this proceeding is designed to protect them from potential adverse impacts on water flows and levels in Silver Springs and the Silver River caused by the CUP, impacts that are the subject of chapter 373 and the rules adopted thereunder.

99. Petitioners, St. Johns Riverkeeper, Florida Defenders of the Environment, and the Silver Springs Alliance are associations appearing on behalf of the interests of their members. The facts stipulated by the parties are sufficient to demonstrate their associational standing under Florida Home

    Builders Association v. Department of Labor and Employment Security, 412 So. 2d 351 (Fla. 1982), and its progeny, including

    St. Johns Riverkeeper, Inc. v. St. Johns River Water Management District, 54 So. 3d 1051 (Fla. 5th DCA 2011).

100. As a result of the stipulated facts supporting standing, there is sufficient evidence to demonstrate that, if the adverse impacts of the proposed agency action were proven, Petitioners would be adversely affected by the CUP.

     Nature of the Proceeding

     
     

101. This is a de novo proceeding, intended to formulate final agency action and not to review action taken earlier and preliminarily. Young v. Dep’t of Cmty. Aff., 625 So. 2d 831, 833 (Fla. 1993); Hamilton Cnty. Bd. of Cnty. Comm'rs v. Dep't of

     
     

     Envtl. Reg., 587 So. 2d 1378, 1387 (Fla. 1st DCA 1991); McDonald

     
     

     v. Dep’t of Banking & Fin., 346 So. 2d 569, 584 (Fla. 1st DCA 1977).

102. The proposed CUP modification must comply with chapter 373, Part II and chapter 40C-2. See § 373.239, Fla.

     Stat.; Fla. Admin. Code R. 40C-2.331(2); CUP A.H. § 11.1.

     
     

103. On August 14, 2014, the District’s CUP rules and corresponding CUP A.H. were revised as part of a statewide consistency rulemaking process. Rule 40C-2.301(4) provides that when an application was complete before August 14, 2014, the applicant may elect review in accordance with the standards, criteria, and conditions that were in effect immediately prior to August 14, 2014. Sleepy Creek has elected to have its CUP application reviewed in accordance with the standards, criteria, and conditions that are currently in effect.

104. In keeping with Sleepy Creek’s election, the law in effect at the time the District takes final agency action on the application is applicable. Lavernia v. Dep’t of Prof’l Reg., 616 So. 2d 53 (Fla. 1st DCA 1993); see also Ag. for Heath Care

     Admin. v. Mt. Sinai Med. Ctr., 690 So. 2d 689, 692-693 (Fla. 1st DCA 1997)(“In Lavernia it was recognized that this state follows

     the general rule that change in a licensure statute which occurs during the pendency of an application is operative as to that application. We logically extend that reasoning and reach the

     
     

     same result with regard to a change in relevant agency rules after the application is complete but before a final decision is made.”). Thus, references in this Recommended Order to

     rule 40C-2.301 shall refer to the rule that became effective August 14, 2014, and references to the A.H. shall refer to the

     A.H. which became effective November 3, 2015. Furthermore, the newly adopted MFL rules for Silver Springs, rule 40C-8.031(10), and the “Supplemental Regulatory Measures for Silver Springs” in rule 40CER17-02 are applicable to the CUP application.

     Scope of the Proceeding

     
     

105. The scope of this proceeding is limited to the 1.22 mgd CUP modification. As noted by Judge J. Lawrence Johnston in a comparable proceeding involving the modification of an existing permit:

     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.” (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 (Fla. DOAH

     May 15, 2007; SFWMD July 18, 2007).

     
     

     Burden and Standard of Proof

     
     

106. Section 120.569(2)(p) provides that:

     
     

     For any proceeding arising under chapter 373, chapter 378, or chapter 403, if a nonapplicant petitions as a third party to challenge an agency's issuance of a license, permit, or conceptual approval, the order of presentation in the proceeding is for the permit applicant to present a prima facie case demonstrating entitlement to the license, permit, or conceptual approval, followed by the agency. This demonstration may be made by entering into evidence the application and relevant material submitted to the agency in support of the application, and the agency's staff report or notice of intent to approve the permit, license, or conceptual approval.

     Subsequent to the presentation of the applicant's prima facie case and any direct evidence submitted by the agency, the petitioner initiating the action challenging the issuance of the permit, license, or conceptual approval has the burden of ultimate persuasion and has the burden of going forward to prove the case in opposition to the license, permit, or conceptual approval through the presentation of competent and substantial evidence.

     
     

107. Sleepy Creek made its prima facie case of entitlement to the CUP, jointly with the District, by entering into evidence the complete CUP application files and supporting documentation, and the TSR. Sleepy Creek also offered the testimony of

     Dr. Bottcher and Dr. Dunn in support of the CUP application. The District offered the testimony of Mr. Burleson and

     Dr. Janicki as part of the prima facie case. Having made its

     
     

     prima facie case, the burden of ultimate persuasion is on Petitioners to prove their case in opposition to the permit by a preponderance of the competent and substantial evidence, and thereby prove that Sleepy Creek failed to provide reasonable assurance that the standards for issuance of the CUP were met.

108. The standard of proof is preponderance of the evidence. § 120.57(1), Fla. Stat.

     Reasonable Assurance

     
     

109. Issuance of the CUP is dependent upon there being reasonable assurance that the proposed withdrawals will meet applicable standards.

110. Reasonable assurance means “a substantial likelihood that the project will be successfully implemented.”

     See Metropolitan Dade Co. v. Coscan Fla., Inc., 609 So. 2d 644,

     
     

     648 (Fla. 3d DCA 1992). Reasonable assurance does not require absolute guarantees that the applicable conditions for issuance of a permit have been satisfied. Furthermore, speculation or subjective beliefs are not sufficient to carry the burden of presenting contrary evidence or proving a lack of reasonable assurance necessary to demonstrate that a permit should not be issued. FINR II, Inc. v. CF Industries, Inc., Case No. 11-6495

     (Fla. DOAH Apr. 30, 2012; DEP June 8, 2012).

     
     

     Issues for Disposition

     
     

111. As set forth in the Joint Pre-hearing Stipulation, the following have been identified as being at issue in this proceeding:

     A concise statement of those issues of fact which remain to be litigated

     
     

     1. Whether Sleepy Creek has provided reasonable assurance that its proposed use of water is a reasonable-beneficial use.

        
        

     2. Whether Sleepy Creek has provided reasonable assurance that the proposed use is consistent with the public interest.

     
     

     A concise statement of those issues of law which remain for determination by the Administrative Law Judge

     
     

     1. The parties agree that the following consumptive use permitting criteria are at issue in this proceeding:

        
        

        1. Whether the applicant has provided reasonable assurance that the use is for a purpose and occurs in a manner that is both reasonable and consistent with the public interest as provided for in Florida Administrative Code Rule 40C-2.301(2)(b) and section 2.3(b), A.H.

           
           

        2. Whether the applicant has provided reasonable assurance that the use will not cause harm to existing offsite land uses resulting from hydrologic alterations as provided in rule 40C-2.301(2)(f) and section 2.3(f), A.H.

           
           

        3. Whether the applicant has provided reasonable assurance that the use will not cause harmful hydrologic alterations to

           
           

           natural systems, including wetlands or other surface waters as provided for in rule

           40C-2.301(2)(g)4 and section 2.3(g)4, A.H.

           
           

        4. Whether the applicant has provided reasonable assurance that the use will not otherwise cause harmful hydrologic alterations to the water resources of the area as provided for in rule 40C- 2.301(2)(g)5 and section 2.3(g)5, A.H.

           
           

        5. Whether the applicant has provided reasonable assurance that the use is in accordance with any minimum flow or level and implementation strategy established pursuant to sections 373.042 and 373.0421, Florida Statutes, as provided for in rule 40C-2.301(2)(i) and section 2.3(i), A.H.

           
           

        6. Whether the applicant has reasonable assurance that the use will not use water reserved pursuant to subsection 373.223(4), Florida Statutes, as provided for in rule 40C-2.301(2)(j) and section 2.3(j), A.H.

           
           

     2. Petitioners contend that the following criterion is at issue in this proceeding:

        
        

        1. Whether the applicant has provide reasonable assurance that the use will not cause harmful water quality impacts to the water source resulting from pollutants in discharges resulting from withdrawal or diversion as provided for in rule

           40C-2.301(2)(g)1 and section 2.3(g)1, A.H. This subparagraph does not foreclose consideration of pollution concentration due to spring flow reduction.

           
           

     3. Respondents contend that the following criterion is at issue in this proceeding:

        
        

        1. Whether the applicant has provided reasonable assurance that the use will not cause harmful water quality impacts to the

     
     

     water source resulting from the withdrawal or diversion as provided for in rule

     40C-2.301(g)1 and section 2.3(g)1, A.H.

     
     

112. The evidence submitted by Petitioners was almost exclusively directed to the deficiencies and unreliability of the NDMv5.

113. Petitioners introduced no evidence to support a finding, nor did they argue in their Proposed Recommended Order, that Sleepy Creek failed to “provide[] reasonable assurance that the use will not cause harm to existing offsite land uses resulting from hydrologic alterations as provided in rule 40C- 2.301(2)(f) and section 2.3(f), A.H.”; that Sleepy Creek failed to provide “reasonable assurance that the use will not use water reserved pursuant to subsection 373.223(4), Florida Statutes, as provided for in rule 40C-2.301(2)(j) and section 2.3(j), A.H.”; or that Sleepy Creek failed to provide “reasonable assurance that the use will not cause harmful water quality impacts to the water source resulting from pollutants in discharges resulting from withdrawal or diversion as provided for in rule 40C- 2.301(2)(g)1 and section 2.3(g)1, A.H.” Thus, as to those issues, the prima facie case supporting issuance of the CUP was unrebutted.

     
     

     Statutory and Rule Criteria

     
     

114. Section 373.223(1) provides, in pertinent part, that:

     
     

     1. To obtain a permit pursuant to the provisions of this chapter, the applicant must establish that the proposed use of water:

        
        

        1. Is a reasonable-beneficial use as defined in s. 373.019;

     
     

     * * *

     
     

     (c) Is consistent with the public interest.

     
     

115. “These three requirements are commonly referred to as the ‘three-prong test.’” Marion Cnty. v. Greene, 5 So. 3d 775,

     777 (Fla. 5th DCA 2009), citing S.W. Fla. Water Mgmt. Dist. v. Charlotte Cnty., 774 So. 2d 903 (Fla. 2d DCA 2001).9/

116. Despite the use of the same term in section 373.223(1)(a) and (c), i.e., “consistent with the public interest,” the District has determined that:

     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.

     
     

     Sierra Club, Inc. et al. v. Sleepy Creek Lands, LLC and

     
     

     St. Johns River Water Mgmt. Dist., Case Nos. 14-2608, 14-2609, and 14-2610, FO at 40 (Fla. DOAH Apr. 29, 2015; SJRWMD July 14,

     2015).

     
     

117. In determining the factors that go into a determination of public interest, the Fifth District Court of Appeal has accepted a construction of the term which limits consideration to issues of “whether the use of water is efficient, whether there is a need for the water requested, and whether the use is for a legitimate purpose; and the inquiry focuses on the impact of the use on water resources and existing legal users.” Marion Cnty. v. Greene, 5 So. 3d at 779.

118. The District has likewise determined that the scope of the public interest test extends no further than the effect of the proposed use on the water resources of the District, and in that regard has established by final order that:

     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 Section 9.3, A.H., is cabined by the purpose of Chapter 373 to address water resource-related issues.

     
     

     City of Groveland v. Niagara Bottling Co. and St. Johns River

     
     

     Water Mgmt. Dist., Case No. 08-4201 (Fla. DOAH Aug. 7, 2009; SJRWMD Sept. 28, 2009).

     First Prong - Section 373.223(1)(a)

     • Reasonable-Beneficial Use

       
       

119. The first “prong” of the three-pronged test established in section 373.223(1)(a) provides that the use of water proposed by a consumptive use permit must be a reasonable- beneficial use. Section 373.019(16) defines “reasonable- beneficial use” 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.”

120. Agricultural use of water is of the type generally recognized to “establish a reasonable-beneficial use in the absence of a competing demand for water.” Harloff v. City of

     Sarasota, 575 So. 2d 1324, 1326 (Fla. 2d DCA 1991).

     
     

121. Rule 40C-2.301 provides, in pertinent part, that:

     
     

     1. To obtain a consumptive use permit, renewal, or modification, an applicant must provide reasonable assurance that the proposed consumptive use of water, on an individual and cumulative basis:

        
        

        1. Is a reasonable-beneficial use;

           
           

           * * *

           
           

     2. In order to provide reasonable assurances that the consumptive use is

     
     

     reasonable-beneficial, an applicant shall demonstrate that the consumptive use:

     
     

     * * *

     
     

     1. Is for a purpose and occurs in a manner that is both reasonable and consistent with the public interest;

     
     

     * * *

     
     

     (g) Will not cause harm to the water resources of the area in any of the following ways:

     
     

     * * *

     
     

     1. Will not cause harmful hydrologic alterations to natural systems, including wetlands or other surface waters; and

        
        

     2. Will not otherwise cause harmful hydrologic alterations to the water resources of the area;

     
     

     * * *

     
     

     (i) Is in accordance with any minimum flow or level and implementation strategy established pursuant to Sections 373.042 and 373.0421, F.S.

     
     

122. The statutes and rules under which the District operates have been supplemented and explained through the development of the CUP A.H.

123. CUP A.H. section 1.1(n) defines “Reasonable- Beneficial Use” as [t]he 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.”

     
     

124. CUP A.H. section 2.3 establishes “Reasonable- Beneficial Use Criteria” and provides, in pertinent part, that:

     The following criteria must be met, on an individual and cumulative basis, for a consumptive use to be considered reasonable- beneficial:

     
     

     * * *

     
     

     (b) The use must be for a purpose and occur in a manner that is both reasonable and consistent with the public interest as defined in Section 3.10.

     
     

     * * *

     
     

     (g) The use must not cause harm to the water resources of the area in any of the following ways:

     
     

     * * *

     
     

     1. The use must not cause harmful hydrologic alterations to natural systems, including wetlands or other surface waters (on site or off-site). A proposed use will be denied as not reasonable-beneficial if the use would alter the existing hydrology and cause an unmitigated adverse impact to natural systems, including wetlands or other surface waters. Methods for avoiding harm include: reducing the amount of water withdrawn, modifying the method or schedule of withdrawal, mitigating the damages caused, or not increasing the potential for flooding. An applicant must avoid or mitigate impacts to wetlands or other surface waters wherever they are located.

        
        

     2. The use must not otherwise cause harmful hydrologic alterations to the water resources of the area.

     
     

     * * *

     
     

     (i) The use must be in accordance with any minimum flow or level and implementation strategy established pursuant to Sections 373.042 and 373.0421, F.S.

     
     

125. CUP A.H. section 3.10 defines "public interest" as that term is used in the context of the reasonable-beneficial use criteria, as:

     those rights and claims on behalf of people in general. In determining the public interest in consumptive use permitting decisions, the District will consider whether an existing or proposed use is beneficial or detrimental to the overall collective well-being of the people or to the water resource in the area, the District and the State.

     
     

     Rule 40C-2.301(2)(b) and CUP A.H. § 2.3(b)

     • Public Interest

       
       

126. In order to qualify for a CUP, the reasonable- beneficial use of the waters proposed for consumptive use must be for a purpose and occur in a manner that is both reasonable and consistent with the public interest.

127. For the reasons set forth in the Findings of Fact herein, and applying the body of law set forth herein regarding reasonable use of water, and the “first prong” public interest test, the proposed CUP meets the criteria established by

     rule 40C-2.301(2)(b) and CUP A.H. section 2.3(b).

     
     

     Rules 40C-2.301(2)(g)4. and 5. and CUP A.H. §§ 2.3(g)4 and 5

     • Hydrologic Alterations

     
     

128. In order to qualify for a CUP, the use must not cause harmful hydrologic alterations to natural systems, including wetlands or other surface waters, or to water resources of the area.

129. For the reasons set forth in the Findings of Fact herein regarding hydrologic effects, the proposed CUP meets the criteria established by rule 40C-2.301(2)(g)4. and 5. and CUP

     A.H. sections 2.3(g)4 and 5.

     
     

     Rule 40C-2.301(2)(i) and CUP A.H. § 2.3(i)

     - Minimum Flows and Levels

     
     

130. As set forth herein, Petitioners’ argument that the MFL rule has not been met is based exclusively on the errors alleged in NDMv5. See St. Johns Riverkeeper, Florida Defenders

     of the Environment, Silver Springs Alliance, and Alice Gardner’s [Proposed] Recommended Order at ¶¶ 98-104. As set forth in the Findings of Fact herein, NDMv5 was designed to be, and is, the most up-to-date and accurate means of evaluating and estimating the effects of withdrawals from the UFA in model domain.

     Petitioners concerns with the model were addressed through a preponderance of competent and substantial evidence. Thus, Petitioners failed to prove that the proposed CUP is not in accordance with the MFL and implementation strategy.

     
     

     Ultimate Conclusion of Reasonable-Beneficial Use

     
     

131. A preponderance of the evidence demonstrated that the proposed use of water will have no material or significant adverse impact to the source of the water, to environmental resources, or to the flows and levels of Silver Springs or the Silver River.

132. A preponderance of the evidence demonstrated that the proposed use of water will be for a productive, beneficial economic activity.

133. A weighing of the evidence introduced at the final hearing leads the undersigned to conclude that the water use proposed by the Sleepy Creek CUP modification is a reasonable- beneficial use of water as defined by statute, and established by the District’s rules and CUP A.H.

     Third Prong - Section 373.223(1)(c) - Public Interest

     
     

134. The third “prong” of the three-pronged test established in section 373.223(1)(c) provides that the use of water proposed by a consumptive use permit must be consistent with the public interest.

135. Rule 40C-2.301 provides, in pertinent part, that:

     
     

     (1) To obtain a consumptive use permit, renewal, or modification, an applicant must provide reasonable assurance that the proposed consumptive use of water, on an individual and cumulative basis:

     
     

     * * *

     
     

     (c) Is consistent with the public interest.

     
     

136. The District has established that:

     
     

     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 . . . .

     
     

     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. . . .

     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.")

     
     

     Sierra Club, Inc. et al. v. Sleepy Creek Lands, LLC, and

     
     

     St. Johns River Water Mgmt. Dist., Case Nos. 14-2608, et seq., FO at 40-41.

137. In applying the “third prong” public interest test, the Fifth District Court of Appeal has held that:

     In examining whether an application is consistent with the public interest, the District considers whether the use of water is efficient, whether there is a need for the water requested, and whether the use is for a legitimate purpose. The inquiry focuses on the impact of the use on water resources and existing legal users.

     
     

     Marion Cnty v. Green, 5 So. 3d at 779.

     
     

138. The Court in Marion County v. Green determined that “the ALJ committed no reversible error.” Id. at 776. Thus, a

     review of Judge J. Lawrence Johnston’s Recommended Order, and its treatment of the public interest test is warranted.

139. Pertinent provisions of the Recommended Order are:

     
     

     39. In examining whether an application is consistent with the public interest, the District considers whether a particular use of water is going to be beneficial or detrimental to the people of the area and to water resources within the state. In this inquiry, the District considers whether the use of water is efficient, whether there is a need for the water requested, and whether the use is for a legitimate purpose; and the inquiry focuses on the impact of the use on water resources and existing legal users.

     
     

     * * *

     
     

     44. The District does not consider the level of financial gain or benefit an applicant will derive from a permitted use of water for purposes of determining whether the proposed use is consistent with the public interest. Most, if not all permitted users of water derive some level of economic benefit from the water they use, and the District’s rule criteria do not provide standards for evaluating such gain or that otherwise limit the amount of such gain.

     
     

     * * *

     
     

     81. In order to provide reasonable assurance that the proposed use of water is consistent with the public interest, Greene and Hastings presented testimony that the water will be used for a productive, beneficial economic activity and that there will no adverse impacts to the source of the water, to environmental resources, or to any adjoining landowners. These are the considerations generally encompassed and addressed by the District’s permitting criteria. With regard to these criteria, there was no evidence offered showing any detrimental impacts resulting from the proposed use of water.

     
     

     * * *

     
     

     86. If a source of water is available for use, and a beneficial use can be made of water from the source, and if a proposed use of the source meets all of the District’s criteria for such use, the District has no basis on which to deny that applicant’s request for a permit to use water from the source.

     
     

     Marion Cnty. v. C. Ray Greene, III; Angus S. Hastings; and St. Johns River Water Mgmt. Dist., Case No. 06-2464 (Fla. DOAH

     Jan. 9, 2007; SJRWMD Mar. 23, 2007).

     
     

140. The preponderance of the evidence in this proceeding, as applied to the third prong “public interest” criteria, supports a conclusion that the proposed use of water by Sleepy Creek is efficient, that Sleepy Creek established a need for the water requested, and that its use is for a legitimate purpose. Furthermore, the water proposed for use is available for a beneficial use, and the proposed use of the source meets all of the District’s criteria.

141. For the reasons set forth herein, the undersigned concludes that 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.

     Conclusion

     
     

142. Petitioners did not meet their burden of ultimate persuasion that the withdrawal of water authorized by the CUP is not a reasonable-beneficial use, or that the withdrawal is inconsistent with the public interest.

143. Applying the standards of reasonable assurance to the Findings of Fact in this case, it is concluded that reasonable assurances have been provided by Sleepy Creek that the activities to be authorized by the CUP modification will meet the applicable standards applied by the District, including those in section 373.223, Florida Statutes; Florida

Administrative Code Rule 40C-2.301; and the corresponding provisions of the CUP A.H., and that CUP No. 2-083-91926-4 should therefore be issued.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law set forth herein it is RECOMMENDED that the St. Johns River Water Management District enter a final order approving the issuance of Consumptive Use Permit No. 2-083-91926-4 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, as supplemented upon the adoption of rule 40C-8.031(10) and 40CER17-02, Supplemental Regulatory Measures for Silver Springs.

DONE AND ENTERED this 17th day of November, 2017, in Tallahassee, Leon County, Florida.

S

E. GARY EARLY Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 17th day of November, 2017.

ENDNOTES

1/ The number of members was omitted from the Joint Pre-hearing Stipulation. However, the Final Order in DOAH Case No.

17-2543ER, which involved identical parties, and was tried on May 11, 2017, found St. Johns Riverkeeper to have approximately 1,000 members, which figure is found to be representative of its membership at the time of the April 10 and 11, 2017, hearing in this case.

2/ The evidence suggests that native tapegrass is actually less abundant in the spring and the upper reaches of the Silver River, with the increased density in the lower reaches of the Silver River.

3/ The reduction in flow is not limited to Silver Springs, but, as recognized by Dr. Knight, “is ubiquitous across our

springs. . . . In general, all of the springs are seeing reductions in flow.”

4/ Dr. Knight has had the opportunity to observe Silver Springs from his visits as a young child in 1953, to his work on an ecological study of Silver Springs in 1979 to 1980, to his current involvement with the Springs Initiative.

5/ Petitioners were dismissive of the extent to which the

evaluation of the model by Mr. Anderson and Mr. Stewart should have been considered to be independent “peer review” since

Mr. Anderson “regularly does business with the District and was actually under contract with the District on another project at the time he served as a ‘peer reviewer.’” There was nothing in the record to suggest that either of the reviewers were predisposed to a result, or exercised less than their best independent scientific judgment in their review of NDMv5.

6/ Much of the data was collected in the evaluation related to the establishment of the Silver Springs MFLs.

7/ A decrease in fish biomass since 1957 was acknowledged, and was attributed in large measure to the construction of the dam and lock that created the Rodman Reservoir. Those structures impeded the movement of migratory fish, notably mullet, which had the highest biomass of any fish observed in the Silver River prior to the creation of the Rodman Reservoir, and which were observed in “modest amounts” after the construction of the dam. Dr. Knight also testified that “[s]triped bass come in from the ocean, eels come in from the ocean, mullet come in from the ocean and move back and forth.” The obstruction created by the

dam and lock of the Rodman Reservoir would appear to affect populations of striped bass and eels to the same degree that they have affected mullet.

8/ The analysis was also intended to determine whether maximum proposed daily withdrawals would cause interference with any existing legal users which, pursuant to the Joint Pre-hearing Stipulation, is not at issue in this proceeding.

9/ As to the second “prong,” the parties stipulated that “[w]hether the applicant has provided reasonable assurance that the use will interfere with any presently existing legal use of water” is not at issue in this proceeding.

COPIES FURNISHED:

Mary Ellen Winkler, Esquire

St. Johns River Water Management District 4049 Reid Street

Palatka, Florida 32177 (eServed)

John R. Thomas, Esquire

Law Office of John R. Thomas, P.A.

211 Northeast Boulevard, Suite 11 Gainesville, Florida 32601 (eServed)

David G. Guest, Esquire

317 East Park Avenue Tallahassee, Florida 32301 (eServed)

Melanie Griffin, Esquire Dean Mead

100 South Ashley Drive, Suite 600 Tampa, Florida 33602

(eServed)

Karen C. Ferguson, Esquire

St. Johns River Water Management District 4049 Reid Street

Palatka, Florida 32177 (eServed)

Avery Sander, Esquire

St. Johns River Water Management District 4049 Reid Street

Palatka, Florida 32177 (eServed)

John Leslie Wharton, Esquire Dean Mead & Dunbar

215 South Monroe Street, Suite 815 Tallahassee, Florida 32301 (eServed)

Ann B. Shortelle, Ph.D., Executive Director St. Johns River Water Management District 4049 Reid Street

Palatka, Florida 32177 (eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 17-000119

Orders for Case No: 17-000119