Findings Of Fact Application No. 76-00254 seeks a consumptive use water permit for 1.08 million gallons per day average daily withdrawal and 2.16 million gallons per day maximum daily withdrawal from one well. This is a new use. The purpose of the consumptive use is a semi-enclosed irrigation system for the irrigation of tomatoes in south Hillsborough County. The water is to be taken from the Floridan Aquifer with some discharge off site. According to Barbara Boatwright, hydrologist for the district, there is some possibility that salt water intrusion may occur, but the district has never documented it in the subject area. The consumptive use will exceed the water crop as defined by the district because 25 percent of the water used will run off site and thus be lost. Except as otherwise stated above, none of the conditions set forth in Subsection 16J-2.11(2),(3) or (4), F.A.C., will be violated. The Southwest Florida Water Management District's staff recommends issuance of the subject permit in the amounts requested with the following conditions: By January 1, 1978, applicant shall reduce runoff to 8.6 percent of the amount pumped, which reduction will bring the amount pumped within the water crop as defined by the district. That the applicant analyze the quality of the water at the beginning and end of each production season and that these analyses be submitted to the district. That the district be allowed to install flowmeters on any discharge canal and on the pump with proper notification of applicant and to enter on property to read the meters.
Recommendation Noting that, with the conditions requested by the Southwest Florida Water Management District's staff, issuance of the sought for permit appears consistent with the public interest, it is RECOMMENDED that a consumptive use permit be issued pursuant to Application No. 75-00254 with the conditions set forth in paragraph 4. CHRIS H. BENTLEY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Terry Elsberry Staff Attorney Elsberry Brothers, Inc. Southwest Florida Water Route 2, Box 70 Management District Ruskin, Florida 33570 Post Office Box 457 Brooksville, Florida 33512
The Issue This cause concerns a dispute between the Petitioner and the Respondents concerning whether a permit ("dredge and fill") and water-quality certification should be issued by the Respondent, Department of Environmental Regulation (hereinafter referred to as "Department" or "DER"), authorizing the construction of a private dock with terminal deck and platform, in conjunction with the construction of a 250-foot "privacy fence" in the adjacent salt marsh, and whether construction, installation and operation of the facility will violate State water-quality standards and the public-interest standards embodied in Section 403.918, Florida Statutes.
Findings Of Fact LaRae Hays, the Respondent/applicant, owns real property to be used for residential purposes, which adjoins a salt marsh and tidal creek contiguous to the Nassau River in Duval County, Florida. The Respondent/applicant applied for a permit and water-quality certification so as to authorize the construction of a private dock with a terminal deck and "stepdown" platform. The applicant also seeks authority to construct a 250-foot by 8-foot wooden ??privacy fence", parallel to that dock. The structures are to be built on a tidal creek and within a salt marsh contiguous to the Nassau River. The application is opposed by the Petitioner, who is an adjoining property owner. The Petitioner opposes the application for the reasons referenced in the above Preliminary Statement. The Department is an agency of the State of Florida charged with regulating and permitting activities which may be sources of pollution, such as the instant project, which are constructed, operated or installed in waters of the State, as defined in Chapter 403, Florida Statutes, and Title 17, Florida Administrative Code. The Department is charged, as pertinent hereto, with reviewing applications, such as the subject application, to insure that the water-quality standards and public-interest standards embodied in Section 403.918, Florida Statutes, as well as Chapters 17-3 and 17-312, Florida Administrative Code, are complied with before issuing a permit authorizing the construction of the proposed facility. Mr. Tyler was called as the first witness for the Department. The parties stipulated that the Department could put on its case first in the order of proof. Mr. Tyler was accepted as an expert witness in the field of the "impact of dredge and fill projects on the environment~?. It was thus established that the Respondent/applicant's project is proposed for a piece of property in the adjacent salt marsh on Black Hammock Island in Duval County, Florida. The Respondent/applicant proposes to construct a private dock, 184 feet by 4 feet, with a 12-foot by 12-foot terminal deck and a 12-foot by 5-foot "stepdown" platform. A portion of the dock is already constructed and is included in the permit sought. The deck is proposed to be surrounded on three sides with a six-foot-high lattice wall covered with a pitched roof. During the course of the proceeding, however, the Respondent/applicant conceded that she would abandon the proposal to construct the lattice walls, would rather leave the terminal deck and roofed area open so that the neighbors' view of the salt marsh and river would not be obstructed and that she would rather install blinds which can be raised or lowered for the roofed portion of the proposed terminal deck. The Respondent/applicant previously dredged and placed fill on a portion of the wetlands in question and dredged a drainage ditch along the perimeter of the wetlands and the Respondent/applicant1s property. The fill was for the purpose of creating a sort of "causeway" leading from the upland property owned by the Respondent/applicant to the landward extent of the already-existing dock. Pursuant to informal enforcement action by the Department, the Respondent/applicant agreed to, and has, removed that fill material and corrected, or is about to correct, the dredging activity done without permit in the drainage ditch in question. The proposed project is located in Class II waters, classified as "conditionally approved" for shellfish harvesting. Normally, under the provisions of Rule 17-312.080(7), Florida Administrative Code, a dredge and fill permit for the proposed project and its construction could not be authorized in such Class II shellfish harvesting waters. However, the Department has granted a variance from that rule so that the activity sought to be permitted can be authorized as a result of the instant permit application, by its notice of intent to grant the variance entered on June 5, 1990. That variance became embodied in a Final Order of the Department authorizing it, entered on July 31, 1990. No interested party responded to due and appropriate notice of the intent to grant the variance, hence, the Final Order approving it. The variance was accompanied by mandatory conditions involving the protection of historical or archaeological artifacts, the prohibition of more than two boats being moored at the dock; of any overboard discharges of trash, animal or human waste or fuel; against any non-water dependent structure such as gazebos or fish-cleaning stations, which must be located on the uplands and against boat shelters having enclosed sides. Additional conditions were that any dock over grass beds should be constructed as to allow for maximum light penetration and that water depth at the mooring area for the dock shall be sufficient to prevent bottom scouring by boat propellers. Additionally, in the notice of intent to grant document, the Department has required that in order for the permit at issue to be granted, in addition to the general conditions applicable to any such permit, the following specific conditions shall be observed by the Respondent/applicant during and after construction: Historical and archeological artifacts shall be reported to the Department, as well as the Bureau of Historic Preservation, Division of Archives History and Records; Prior to commencement of the work, the permittee shall provide written notification of commencement to the Department; turbidity control shall be utilized throughout the project to contain any turbidity generated; The waterward end of the dock shall be marked by a sufficient number of reflectors as to be visible from the water at night by reflected light; All work shall be done during periods of average or low water in order to minimize turbidity; All disturbed areas shall be re-vegetated with indigenous vegetation in order to prevent erosion or unstabilized material entering into State waters; and Finally, that the project shall comply with applicable State water- quality standards. The Respondent/applicant has agreed to these conditions. Moreover, the testimony of Mr. Tyler establishes that no water-quality violations of the standards contained in Chapter 17-312 and 17-3, Florida Administrative Code, will be occasioned by the construction or operation of this facility. The pilings necessary to perform the construction involved will be installed at periods of low or average tide, such that the installation area will not generate turbidity in the State waters involved at the site. The dock is so designed that maximum light penetration will occur so that deleterious shading of the marsh grasses involved at the site and under the footprint of the dock will not occur. Moreover, the dock and the proposed fence, for that matter, would have a beneficial effect on benthic species diversity by encouraging aquatic invertebrates to attach and form colonies on the posts and pilings where they enter State waters. It was also established, through the Department's evidence, as well as the testimony of the Respondent/applicant's witnesses, that there is a sufficient water depth in the creek located at the waterward end of the proposed dock and ~?stepdown?? platform, such that the small boats which would be able to navigate the creek, being of sufficient shallow draft, will not occasion propeller scouring or propeller-generated turbidity when operated at prevailing water depths for boats which will be moored at the end of the proposed facility. In summary, it has been demonstrated that no State water-quality standards will be violated by the installation and operation of the proposed facility, given the conditions which the Respondent/applicant and the Department have already agreed upon and the Respondent/applicant has accepted on the record in this case, including the condition concerning no gazebo-type structures located on the dock and no fish cleaning facilities or fueling equipment or facilities on the dock or platforms. Such conditions should be incorporated in any Final Order and permit resulting from this proceeding. In addition to the water-quality considerations discussed above, it must be determined whether reasonable assurances have been provided by the permit applicant that the proposed project will meet the "public interest" standards of Section 403.918(2)(a)1-7, Florida Statutes. In this regard, it has been demonstrated by the evidence and testimony adduced by the Respondent/applicant and the Department that the project will not adversely affect the public health, safety or welfare or the property of others in the context of the various environmental concerns addressed and regulated by Chapter 403, Florida Statutes, and Title 17, Florida Administrative Code. The unrefuted testimony of expert witness, Tyler, establishes that the project will not adversely affect the conservation of fish and wildlife, including endangered or threatened species or their habitats. The project will not adversely affect navigation, the flow of water, or cause harmful erosion or shoaling. Mr. Tyler's testimony establishes that the ecosystem in the vicinity of the project consists of a natural intertidal saltwater marsh, which is currently in excellent condition and has a high relative value of functions as a habitat and nursery area for marine and estuarine vertebrate and invertebrate species. The project will not adversely affect fishing or marine productivity in the area involved nor have an adverse effect on the current condition and relative functional value of the marsh area in terms of habitat for, and the conservation of, fish and wildlife and in terms of its value as a marine and estuarine habitat and the marsh system's function in protecting water quality. Although the project will not adversely affect fishing or marine productivity in the vicinity of the project, the proposed "privacy fence" has not been shown to be "not contrary to the public interest'1 in terms of adverse effect on recreational values??. The "privacy fence" will not pose any of the other adverse consequences in terms of the above-discussed seven (7) public- interest standards nor will it impose a detrimental impact on water quality, especially since it will be elevated approximately a foot above the surface of the soil in the marsh area, preventing any impediment to normal tidal flows and flushing. The fence will, however, impose a detrimental effect on the recreational value of the State waters involved in the subject marshland area by impeding the aesthetic qualities of the view of the marshland and river system for adjoining landowners, specifically, the Petitioner. The fence will clearly impede this "passive recreational value" and reasonable assurances that it will not do so have not been provided in the testimony and evidence of record. The desire of the Respondent/applicant to install the fence is certainly understandable in view of the hostile relations between the Respondent/applicant and the Petitioner, caused to a great degree by the Petitioner's persistence in installing and operating an overly-bright nighttime security light and, more particularly, because of the Petitioner's habit of constantly photographing, with a video camera, the Respondent/applicants or her invitees while they are using the present dock. Because the fence will impede the recreational value of the marshland in terms of the aesthetic nature of the view of the marsh of the Petitioner, the permit should not include authorization for installation of the fence. The relevant and more peripheral facts established in this record prove the wisdom of the words of the poet, Robert Frost, who wrote that "good fences make good neighbors". The parties' dispute concerning the use of the security light and video camera more properly sounds in the circuit court, however. A proceeding involving disputed environmental permitting issues cannot serve to resolve all the "life management" disputes between the parties. In summary, the unrefuted evidence of record demonstrates that, with the exception of the last above mentioned consideration concerning the proposed fence, that the water quality standards and the public interest standards embodied in Section 403.918(1) and (2), Florida Statutes, will not be violated by the proposed project if the conditions mentioned above and those provided for in the Department's Exhibit 3, which are incorporated in these findings of fact by reference, are imposed on any grant of a permit. A grant of the permit should also be conditioned upon periodic monitoring of the installation of the proposed project, which the Department has agreed in this record to do.
Recommendation Accordingly, in view of the above findings of fact and conclusions of law it is, therefore RECOMMENDED that a Final Order be issued by the Department of Environmental Regulation granting the subject dredge and fill permit and water quality certification sought by the applicants provided that grant of the subject permit should include the general and specific conditions incorporated in the Department's Exhibit 3, as well as the conditions found to be necessary in the above findings of fact. DONE AND ENTERED this 31st day of May, 1991, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 1991. COPIES FURNISHED: David Sangillo 15665 Shellcracker Road Jacksonville, FL 32226 LaRae Hays 1574 Menlo Avenue Jacksonville, FL 32218 William H. Congdon, Esq. Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carol Browner, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esq. General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issue in this proceeding is whether the District should approve FRI's consumptive use permit application, no. 2-019-0012AUR, pursuant to Chapter 40C- 2, Florida Administrative Code The FRI is seeking permission to withdraw an annual average daily rate of million gallons per day (mgd) of water and 762.85 million gallons per year of ground water for hydraulic dredging, cleaning and purification of sand at the Goldhead Sand Mine. Subject to certain limiting conditions to be set forth in the FRI's consumptive use permit, the water is proposed to be produced from three Floridan aquifer wells. District proposed to grant the permit application which was challenged by LBCA, resulting in the formal administrative proceeding. LBCA challenged the issuance of the permit to FRI on the basis of the FRI's alleged failure to comply with the applicable requirements of Chapter 3V3, Florida Statutes (E.S.), and Chapter 40C-2, Florida Administrative Code (F.A.C.), and other applicable law. RULINGS ON EXCEPTIONS TO FINDINGS OF FACT LBCA Exception Number 1 The LBCA takes exception to the hearing officer's Finding of Fact 2 that a necessary component of FRI's operation is its withdrawal of approximately 2.09 mgd of ground water for the production of sand. The 2.09 mgd is the average daily usage rate to who the parties stipulated prior to the hearing. The maximum daily usage rate is 3.75 mgd. However, FRI cannot exceed 762.5 million gallons for the year which is an average of 2.09 mgd. (Prehearing Stip. pp. 1,9). In the LBCA Proposed Recommended Order paragraph 25, the LBCA states that the operation "necessitates FRI's pumping allocation of an average daily 2.09 million gallons of water from the Floridan aquifer." Additionally, LBCA acknowledges in its Exception No. 2 that it is "known that approximately 2 mgd are pumped into the system." If a hearing officer's finding is supported by any competent substantial evidence from which the finding could reasonably be inferred, then it cannot be disturbed. Berry v. Dept. of Environmental Regulation, 530 So.2d 1019 (Fla. 4th DCA 1988). This exception is rejected because the finding is supported by competent substantial evidence. (T. 41-42, 104, 913-914). LBCA Exception Number 2 The LBCA takes exception to the hearing officer's Findings of Fact 8 and 28 that the receiving water from the mine site is primarily the surficial aquifer which recharges the downgradient lakes and that the surficial aquifer recharge will result in a positive or immeasurable effect on the lakes. The exception goes to the weight of the evidence and inferences drawn there from by the hearing officer. It is improper for this Board to retry the case after the hearing has concluded by altering findings supported by evidence and reweighing evidence. Tampa Wholesale Liquors, Inc. v. Div. of Alcoholic Beverages and Tobacco, 376 So.2d 1195 (Fla. 2d DCA 1979). The decision to believe one expert over another is left to the hearing officer, and the decision cannot be altered absent a complete lack of competent substantial evidence from which the finding could be reasonably inferred. Fla. Chapter of Sierra Club v. Orlando Utility Comm., 436 So.2d 383, 389 (Fla. 5th DCA 1983) This Board cannot reweigh conflicting evidence, judge credibility of witnesses, or otherwise interpret the evidence to reach a desired result. Heifetz v. Dept. of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985); Freeze v. Dept. of Business Regulation, 556 So.2d 1204 (Fla. 5th DCA 1990). If a hearing officer's finding is supported by any competent substantial evidence from which the finding could reasonably be inferred, then it cannot be disturbed. Section 120.57(1)(b)10., Fla. Stat.; Berry v. Dept. of Environmental Regulation, 530 So.2d 1019 (Fla. 4th DCA 1988). This exception is rejected because the findings are supported by competent substantial evidence. (T. 105, 120-129, 146, 170, 187-190, 208-209, 235, 248, 256-257, 972-973, 1085-1093, 1139). LBCA Exception Number 3 The LBCA takes exception to the hearing officer's Finding of Fact 11 that the aquifer characteristics in the Floridan aquifer beneath and around the mine site are relatively uniform. The exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 180, 926-927). LBCA Exception Number 4 The LBCA takes exception to a mischaracterization of the hearing officer's Finding of Fact 13 regarding lake leakance by stating that the hearing officer found that some of the lakes at issue do not have leakance to the Floridan aquifer. In fact, it is contextually clear that the Hearing Officer was referring to "many of the lakes within the region." This exception goes to the weight of the evidence and inferences drawn there from by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 77-80). LBCA Exception Number 5 The LBCA takes exception to the hearing officer's Finding of Fact 16 that very little, if any, of the groundwater flowing into the Floridan aquifer beneath Lake Brooklyn flows toward the mine site. In making its argument, LBCA inaccurately attributes testimony to FRI witness Fountain when the referenced testimony was testimony of LBCA witness Boyes. This exception goes to the weight of the evidence and inferences drawn there from by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 1145-1146). LBCA Exception Number 6 The LBCA takes exception to the hearing officer's Findings of Fact 22 and 55 that the data collection effort of FRI and the District was far more extensive than is normally conducted for a mine of this size and that sufficient site-specific information was developed to be able to determine the effects of the proposed use of water at the mine operation. This exception goes to the weight of the evidence and inferences drawn there from by the hearing officer. The findings are supported by competent substantial evidence and therefore the exception is rejected. (T. 103, 201, 238, 918-919; FR Ex. 5). LBCA asserts that FRI did not evaluate the "worstcase" scenario in order to establish permit entitlemet LBCA provides no legal citations to support its exception. LBCA's assertion lacks legal as well as factual support. LBCA has criticized FRI's aquifer performance test and modeling effort without presenting the elusive "worstcase scenario" which presumably would show impacts greater than those modeled by FRI. LBCA seeks to impose a burden of proof which is insupportable in law. It is not FRI's burden to show a violation of the criteria in Chapter 40C-2, Fla. Admin. Code, is a scientific impossibility, only to show that the non-occurrence of such violation is reasonably assured by the preponderance of the evidence in the proceeding. The Corporation of the President v. SJRWMD and City of Cocoa, Case Nos. 89-828, 89-751 (SJRWMD Dec. 13, 1990), aff'd, 590 So.2d 427 (Fla. 5th DCA 1991). An agency cannot assume the worst-case scenario unless that condition is reasonably foreseeable. Florida Audubon Society, supra..; Rudloe and Gulf Stream Specimen Co. v. Dickerson Bayshore, Inc., 10 F.A.L.R. 3426 (Florida Department of Environmental Regulation, June 8, 1988). As delineated in FRI's response to this exception, FRI and the Distract presented evidence of numerous investigations regarding this application, including testing and analyses of the impact of withdrawals at greater than the average and maximum daily pumping rates. (See Record citations on pp 17-20 of FRI's Response to Exceptions; T. 115-116, 126, 176-177, 918- 920). LBCA failed to present any citation to the record where it presented testimony evincing that another scenario which would result in greater impacts than those predicted by the applicant were reasonably like to occur. LBCA's speculation that another undefined scenario of pumping would show greater impacts was rejected by the hearing officer. The applicant has provided reasonable assurances with regard to the effects of the proposed withdrawal. LBCA Exception Number 7 The LBCA takes exception to the hearing officer's purported inference in Finding of Fact 23 that the aquifer performance test (2T) measured impacts significantly greater than could be expected to occur under "worst case" conditions as a result of the mining operation. The finding actually states "the (aquifer performance) test measured effects of pumping from the mine production wells for periods ranging from 78 hours to 108 hours at approximately twice the average rate of 2.09 mgd." As discussed in the ruling on exception no. 6, LBCA's assertion of a "worstcase scenario" has factual support in the instant case. The applicant is required to provide reasonable assurance that the proposed use is reasonable, beneficial, will not impact existing legal uses and is consistent with the public interest. The applicant is not required to evaluate LBCA's unspecified worst case scenario or prove the use will not cause any impacts. Florida Audubon Society, supra..; Rudloe, supra.. This exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 113-115, 141, 920). LBCA Exception Number 8 The LBCA takes exception to the hearing officer's Finding of Fact 23 that no changes in the lake levels are attributable to the pumping at the mine. This exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. In Finding of Fact No. 24, the hearing officer found that the effects of pumping were not distinguishable from the declines which occurred before and after the ADT test. Therefore, his conclusions are not inconsistent as alleged by the LBCA. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 120-130, 146, 759, 928- 933, 942, 944- 948, 1015-1016, 1122-1123, 1168; Dist. Ex. 5). LBCA Exception Number 9 The LBCA takes exception to the hearing officer's Finding of Fact 24 that the actual effects of the pumping will be approximately one half of the observed amounts of the 2T test on an average pumping day. This exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 113-117, 923-996; Dist. Ex. 5). LBCA's claim that this finding is irrelevant since only a "worstcase" scenario is pertinent is likewise rejected. Initially, it is noted that LBCA cites no legal support for its arguments. Furthermore, there is no requirement in the District's rules governing consumptive use which mandates consideration of only "worstcase" scenarios. Furthermore, an agency cannot assume worst case scenarios unless they are reasonably foreseeable, which determination is a case by case factual issue. See Florida Audubon Society, supra., Rudloe, supra.. LBCA Exception Number 10 The LBCA takes exception to the hearing officer's Finding of Fact 26 that Dr. Stewart testified that the Floridan aquifer is rarely completely homogenous and isotropic but that he and other modelers regularly make that assumption. This Board cannot judge credibility of witnesses or otherwise interpret the evidence to reach a desired result. Heifetz, supra.; Freeze, supra.. This exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. The finding supported by competent substantial evidence and therefore the exception is rejected. (T. 738). LBCA Exception Number 11 The LBCA takes exception to the hearing officer's Finding of Fact 27 that the maximum drawdown in the Floridan aquifer under normal pumping conditions is modeled to be 0.1 to 0.2 feet beneath White Sands Lake. This exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 129, 182). For the same reasons stated in the ruling on exceptions no. 9 and 7, the LBCA's claim regarding irrelevancy is rejected. LBCA Exception Number 12 The LBCA takes exception to the hearing officer's Finding of Fact 28 that a decrease in lake levels will be less than that of the decrease in the Floridan aquifer, depending on the rate of leakance and that the drawdown effect will not accumulate over time, but rather will remain constant after reaching steady state conditions. The LBCA is simply rearguing their case. This Board cannot reweigh conflicting evidence, judge credibility of witnesses, or otherwise interpret the evidence to reach a desired result. Heifetz, supra.; Freeze, supra.. This exception goes to the weight of the evidence and inferences drawn there from by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 118-120, 129, 237, 706-708, 758). LBCA's irrelevancy argument is rejected for the reasons stated in the ruling on exceptions no. 9 and 7. LBCA Exception Number 13 The LBCA takes exception to the hearing officer's Findings of Fact 42 through 54 as being conclusion of law rather than findings of fact. The LBCA does not cite to the record or make legal argument to support the exception as required by Rule 40C-1 .564, F.A.C. Without said citation or argument, the exception is rejected. Corporation of the President, supra.. The hearing officer's recitation of the individual criteria of Rules 40C-2.301 (2), (4) and (5), F.A.C., serve as introduction to and reference for the specific findings with regard to each criterion to provide clarity in the order. To the extent that expert witnesses presented testimony on the criteria and how the applicant satisfied the criteria through proof, the elements are findings or fact. These additional reasons also serve as ground for rejection of the exception. LBCA Exception Number 14 The LBCA takes exception to the hearing officer's Finding of Fact 56 that LBCA's referenced exhibits do not correlate with normal conditions when compared with longer periods of time. The exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. In addition, the hearing officer ultimately did not admit the exhibits and therefore, the Finding of Fact becomes irrelevant. (T. 1152-1168, 411-416, 930- 933, 948, 969; FR Ex. 50A, SOB). Contrary to Rule 40C-1.564(3), F.A.C., LBCA fails to state wish particularity citations to the record or legal basis as required by Rule 40C-1.564, F.A.C., in support of its attack on finding 56 and its inferential attack on findings 23, 24, 30, 31, 32, 33, 34 and conclusions 62 and 63. The entire exception is rejected. LBCA Exception Number 15 The LBCA takes exception to the hearing officer's Conclusion of Law 66 that LBCA's exhibits 61, 64, 65, 71, 75, 76, 78-80, 82 and 83 have limited probative value to the extent it is predicated on FRI's rebuttal testimony. The LBCA argues that the rebuttal testimony is of low probative value. This Board cannot reweigh conflicting evidence, judge credibility of witnesses, or otherwise interpret the evidence to reach a desired result. This exception goes to the weight of the evidence and inferences drawn there from by the hearing officer. The finding is supported by competent substantial evidence and, therefore, the exception is rejected. (T. 1152-1168, 411-416, 930-933, 948, 969). Exception is also taken to Findings of Fact Nos. 32, 36, and 56 and Conclusion of Law 62 because LBCA argues that the testimony on which they are based exceeded the scope of direct examination and the LBCA was not given the opportunity to object. The correct time to object was when the alleged improper testimony was elicited. The LBCA did not object to preserve the record and therefore, has waived the objection. Section 90.104(1)(a), Fla. Stat. Finally, LBCA asserts that it was denied the opportunity to present rebuttal testimony in violation of Section 120.57(1)(b)4., Fla. Stat. To the contrary, LBCA was not denied the opportunity to present rebuttal testimony but failed to request surrebuttal and consequently failed to preserve any denial of that request by an objection on the record. (T. 1188-1190). Since LBCA never requested surrebuttal, the hearing officer never denied that request and, therefore, LBCA's argument is without merit. Furthermore, pursuant to the order of presentation under Rule 40C- 1.5434(1), F.A.C., which is followed in a permitting proceeding (applicant, petitioner, district), LBCA's entire case tended to be in the nature of rebuttal to the applicant's case. While the hearing officer did state that he did not ordinarily allow surrebuttal (T. 1169) before the rebuttal testimony was concluded, LBCA never affirmatively requested to present surrebuttal evidence or testimony nor did LBCA proffer any such evidence or testimony. Since no proffer was made of any relevant surrebuttal testimony which LBCA contends was excluded, and no objection was made in the record to LBCA's belief that it was prohibited from adducing surrebuttal evidence, it is now precluded from complaining about this perceived adverse ruling. King v. Estate of King, 554 So.2d 600 (Fla. 1st DCA 1989); Holmes v. Redland Construction Co., 557 So.2d 911 (Fla. 3rd DCA 1990); Roberts v. Hollway, 581 So.2d 619 (a. 4th DCA 1991); Diaz v. Rodriguez, 384 So.2d 906 (Fla. 3rd DCA 1980). The exception is rejected. LBCA Exception Number 16 The LBCA takes exception to the hearing officer's Findings of Fact 17, 18, 19, 20, 21, 52 and 55 and Conclusions of Law 62 and 63. Findings of Fact 18, 19, 21, 52 and 55 and Conclusions of Law 62 and 63 are discussed in subsequent exceptions and therefore arc not addressed in this ruling on exceptions. LBCA's exception to Finding of Fact 20 fails to state with particularity any supporting citations to the record or legal argument as required by Rule 40C- 1.564 (3), F.A.C., and is therefore, rejected. LBCA takes exception to Finding of Fact 17 that the hearing officer incorrectly refers to three distinct water quality studies. In fact, the hearing officer actually refers to "numerous analyses" LBCA also objects to the reference to "unknown persons" in the finding and apparently to the statement: "They include analyses conducted by the District in 1989 and 1992, including sampling of water quality and an analysis of the background levels of certain parameters, and an assessment of data from HRS testing in March 1989 and May 1992." Clarification that HRS personnel conducted sampling in 1989 and 1992 is provided; however, since these personnel were never specifically named, to that extent the hearing officer's reference to "unknown persons" is accurate. (T. 1035, 379). The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 102-103, 130- 133, 451, 1023-1037, 1041- 1048, 1151-1152). LBCA Exception Number 17 The LBCA takes exception to that part of the hearing officer's Finding of Fact 18 that states: "This theory was predicated on... an assumption that a chemical reaction was occurring because herbicides were used in the dredge pond." LBCA fails to prove any supporting transcript citations in violation of Rule 40C- 1.564 (3), F.A.C. In Finding of Fact 18, the hearing officer reached the conclusion that none of the water quality samples taken from the mine site indicate a violation of state water quality standards. The exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. It is improper for this Board to retry the case after the hearing has concluded by altering findings and reweighing evidence. Tampa Wholesale Liquors, Inc., supra.. This Board cannot judge credibility of witnesses or otherwise interpret the evidence to reach a desired result. The finding is supported by competent substantial evidence and the exception is rejected. (T. 133, 575, 1024-1025). LBCA Exception Number 18 The LBCA takes exception to the hearing officer's Finding of Fact 19 by arguing that water quality on the mine site says nothing about off site impacts and positing that the finding is predicated on certain speculation. LBCA offers no helpful record citations supporting these allegations. Expert testimony established that water quality sampling by FRI and the District of the surficial aquifer at the locations chosen was where water quality impacts would be most likely to be revealed and consequently was a conservative approach. (T. 133, 144, 1029-1030, 1061, 1073). This exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 130-139, 141-144, 575-576, 1028-1031, 1061-10 65, 1073, 1136-1139). LBCA Exception Number 19 The LBCA takes exception to the hearing officer's Finding of Fact 21 by stating that it misleadingly implies that 212 homes were tested for water quality by HRS. To the contrary, the hearing officer's finding states "12 out of 212 homeowners" (emphasis added) south of the mine site were tested, not 212. In addition, the exhibits referenced do not reflect the testing of 212 homes. The finding is supported by competent substantial evidence and the exception is rejected. (T. 167-168, 379, 990, 1036-1037, 1041, 1048-1050, 1052-1053). LBCA Exception Number 20 The LBCA takes exception to the hearing officer's Finding of Fact 21 on the basis that it is a legal conclusion which misrepresents and misapplies the state water quality standards. However, LBCA cites no authority or record citation for the argument as required by Rule 40C-1.564(3), F.A.C. The finding actually states "with the exception of one well... the water from the homeowners' wells did not exceed background water quality for iron and manganese"; clearly, this is a factual statement. This exception, under the guise of an unsupported legal argument, goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. The finding is supported by competent substantial, and uncontroverted, evidence which, incidentally, includes explanation and citation to the relevant exception/standard. Furthermore, the parties stipulated that official recognition was taken of chapter 17-520, F.A.C. The exception is rejected. (T. 1034, 1041, 1077-1078; Prehearing Stip. p 12; Rules 17- 520.420(2) and 17-520.200(11), F.A.C.) LBCA Exception Number 21 The LBCA takes exception to the hearing officer's Finding of Fact 21 that the 1989 water quality samples by HRS were unreliable because of the uncertainty regarding the sampling technique protocol. This exception erroneously states there was no evidence of sampling protocol used by HRS. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 1039-1049). LBCA Exception Number 22 The LBCA takes exception to the hearing officer's Finding of Fact 52 that the receiving body of water will not be seriously harmed, by characterizing the finding as being predicated on an unproven theory that the surficial aquifer receives all groundwater discharged from one site. LBCA has failed to read the entire finding which clearly reveals that the hearing officer did not confine his consideration to the surficial aquifer. He found that water quality standards would not be violated in the surfical aquifer, where the highest concentrations of any potential contaminants would appear, then they would not be violated in any intermediate aquifer similarly, no violations would occur in one Floridan aquifer. The decision to believe one expert over another is the role of the hearing officer, and the decision cannot be altered absent a complete lack of competent substantial evidence from which the finding could be reasonably inferred. Fla. Chapter of Sierra Club, supra.. This Board cannot reweigh conflicting evidence, judge credibility of witnesses, or otherwise interpret the evidence to reach a desired result. Heifetz, supra.; Freeze, supra.. If a hearing officer's finding is supported by any competent substantial evidence from which the finding could reasonably be inferred, then it cannot be disturbed. Berry, supra.. This exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 105, 141-142, 1025-1030, 1034-1035). LBCA Exception Number 23 The LBCA takes exception to the hearing officer's Finding of Fact 55 that water quality sampling was collected to evaluate a water budget for the dredge pond. In their responses to this exception, FRI explicitly notes it has no response to this exception and District counsel concedes that although water quality samples were taken from the dredge pond and a water budget was calculated for the dredge pond, these two procedures were not linked to one another. The testimony of FRI witnesses is that water quality sampling and data to determine the water budget for the dredge pond were performed. (T. 76, 103). Counsel for FRI and the District have stipulated that the testimony does not support the finding that the water quality samples were used to evaluate the water budget. Since, as stipulated, this portion of the hearing officer's finding is not supported by any evidence in the record, the exception is accepted. LBCA Exception Number 24 The LBCA takes exception to the nearing officer's Finding of Fact 55, arguing that the applicant did not perform an environmental assessment of Lake Brooklyn, and thus cannot fairly draw any conclusions about its operation's impact on that lake. The Finding of Fact describes the site-specific information which supports the application. The pertinent part of the finding states: "FRI conducted an assessment of the environmental impacts to the wetland and wildlife resources of the area lakes, including White Sands, Spring and Gator Bone Lakes." To the extent Lake Brooklyn is encompassed by use of the term "area lakes", the existence of an assessment of the impacts to Lake Brooklyn is supported by expert testimony. (T. 281, 899). Additionally, the finding is otherwise supported by competent substantial evidence. (T. 266-280). The exception is rejected. LBCA Exception Number 25 The LBCA takes exception to the hearing officer's Finding of Fact 31 which states in pertinent part: "petitioner's witness Dr. Stewart opined that there is insufficient data to determine whether any impacts to lake levels are occurring." LBCA is essentially complaining that the entirety of Dr. Stewart's testimony should be credited not just a portion. The role of the hearing officer is to consider and weigh all the evidence, resolve conflicts and judge credibility of the witnesses. The hearing officer apparently did not view all of Dr. Stewart's testimony in the same manner as LBCA's attorney; such is his legal prerogative. If a hearing officer's finding is supported by any competent substantial evidence from which the finding could reasonably be inferred, then it cannot be disturbed. Berry, supra.. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 784-786, 145- 146, 232-233, 285-286, 288-289, 897-898, 1085). LBCA Exception Number 26 The LBCA takes exception to the hearing officer's Finding of Fact 24 that the rate of decline (in Spring, White Sands and Gator Bone Lakes) during the APT test was not distinguishable from the declines which occurred before or after the test. LBCA provides no record citations to support its argument that since the hearing officer rejected its use of certain APT data in an attempted correlation between pumping and Lake Brooklyn levels, that all the APT data was entirely discredited and could have no value in an analysis regarding Spring, White Sands or Gator Bone Lakes. If a hearing officer's finding is supported by any competent substantial evidence from which the finding could reasonably be inferred, then it cannot be disturbed. Berry, supra.. This exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 941-948, 1015-1016, 1123, 1168). RULINGS ON EXCEPTIONS TO CONCLUSIONS OF LAW LBCA Exception Number 1 The LBCA takes exception to the hearing officer's Conclusion of Law 62 and 63 and Findings of Fact 42 through 54 (which LBCA alleges should be conclusions of law) that FRI has established its entitlement to the permit. LBCA argues that the applicant failed to present sufficient information about conditions at Lake Brooklyn. LBCA's numerous "factual" statements in this exception are unsupported by record citations. The burden of proof in an administrative hearing falls initially upon the party asserting the affirmative of an issue, i.e. entitlement to a permit. Rules 40C-1.545 and 40C-2.301(7), F.A.C.; Capeletti Brothers v. Department of General Services, 432 So.2d 1359 (Fla. 1st DCA 1983); Department of Transportation v. J.W.C., Inc., 396 So.2d 778 (Fla. 1st DCA 1981). The party must prove its case by a preponderance of the evidence. Florida Audubon Society v. South Florida Water Management District, 13 F.A.L.R. 4169 (undated). The applicant's burden is to establish reasonable assurances that the proposed use is a reasonable-beneficial use, will not interfere with any presently existing legal use of water, and is consistent with the public interest. Section 373.223, Fla. Stat. The burden of reasonable assurances is not one of absolute guarantees. City of Sunrise v. Indian Trace Community Dev. Dist., 14 F.A.L.R. 866 (January 16, 1992). The impacts which are reasonably expected to result from issuance of the permit must be addressed, not potential impacts or those that might occur Hoffert v. St. Joe Paper Co., 12 F.A.L.R. 4972 (December 6, 1990); Chipola Basin Protective Group Inc. v. Florida Chapter of Sierra Club, 11 F.A.L.R. 467 (Department of Environmental Regulation, December 29, 1988); Florida Keys Citizen Coalition v. 1800 Atlantic Developers, 8 F.A.L.R. 5564 (Department of Environmental Regulation, October 17, 1986). Once the party asserting the affirmative, FRI, has presented its prima facia case, the burden shifts to the LBCA to present contrary evidence. 1800 Atlantic Developers, supra.; Hoffert, supra.. LBCA cites Booker Creek Preservation, Inc. v. Mobil Chemical Co., 481 So.2d 10 (Fla. 1st DCA 1986) in support of the exception. In Booker Creek, the Court held that additional testing, beyond that offered by the applicant, should have been done before the permit could be issued. Booker Creek was limited to its unique set of facts by the case of Berry v. Dept. of Env. Regulation, 530 So.2d 1019 (Fla. 4th DCA 1988). The Berry Court, in dealing with a dredge and fill permit, refused to extend the Booker Creek holding to such permits, noting that the permit under consideration in Berry, was not a pollutant discharge permit. The permit in issue here also is not a pollutant discharge permit. More importantly, like the applicant in Berry, FRI offered evidence of extensive testing and analysis regarding where water comes from and goes to at the mine site and in the surrounding vicinity. Finding of Fact No. 55. LBCA incorrectly argues that the modeling information submitted by FRI has no applicability to impacts at Lake Brooklyn, because the model "did not include Lake Brooklyn". Particularly, in view of findings of fact 23, 28, 31-36 (exceptions to which have been previously rejected), it is apparent that the hearing officer rejected LBCA's view of the "facts" stated in this exception. While the model boundary (which is based on water level data for Floridan wells in the region (T. 164)) is between Lake Brooklyn and the pumping wells at the mine, the drawdown at the model boundary is based on a distance-drawdown relationship that relates to the pumping rate at the mine. The 1991 transient model showed that within the 9 square mile boundary, the impacts at the boundary were no more than 0.1 feet. (T. 129, 178). The reduced boundaries in the 1992 model accurately predicted what was happening at the mine site. (T. 178). The distance-drawdown relationship established by the model shows that the drawdown contour ceases before the model boundary is reached and therefore, before Lake Brooklyn is reached. (FR Exs. 5, 22). Impacts to Lake Brooklyn were also assessed through the review of water levels in the Floridan aquifer well (C- 120) between 1960 and 1992. (T. 928-933). The data showed that water levels in the well at Lake Brooklyn actually continued to rise when the 1989 and 1991 pump tests were conducted. (T. 411-412, 931-933; SJRWMD Ex. 13). In addition, when the pumping wells at the mine were turned off, the water level in the well at Lake Brooklyn did not recover. This indicates that there were outside influences for the fluctuation in the well. (T. 415, 933). The data does not show impacts from the pumping at the sand mine. (T. 942). LBCA also erroneously states that groundwater in the Floridan aquifer beneath Lake Brooklyn flows toward the mine. (See ruling on LBCA's factual exception 5). As listed in responses to LBCA's factual exceptions, particularly those regarding exceptions 8 and 12, there is competent, substantial evidence to support the bindings regarding no adverse impact to Lake Brooklyn. The hearing officer found that the applicant met its burden or proof in Conclusion of Law 62. In Conclusion of Law 63, the hearing officer concluded that the LBCA did not meet its burden of presenting contrary evidence that the withdrawals at the sand mine correlate with the decline in water levels at Lake Brooklyn. The exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. This Board cannot reweigh conflicting evidence, judge credibility of witnesses, or otherwise interpret the evidence to reach a desired result. Heifetz, supra.; Freeze, supra.. This exception is rejected. LBCA Exception Number 2 The LBCA takes exception to the hearing officer's Conclusion of Law 63 that additional permit conditions in the case of a water shortage or a shorter permit duration are not necessary. The LBCA is reargue their case in the exception. The District has authority to require FRI to reduce its water use during a water shortage within the seven year life of the permit. Sections 373.175 and 373.246, Fla. Stat., and Rules 40C-2.381(2)(a)2. and 40C-21.271, F.A.C. Rule 40C-2.381(2)(a)2., F.A.C., which is incorporated into the permit as a limiting condition, states: 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, F.S., or to formulate a plan for implementation during periods of water shortage, pursuant to section 373.246, F.S. 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. (emphasis added). Rule 40C-21.271, F.A.C., General Water Use Restrictions, specifies the restrictions which may be imposed during a water shortage on all water users and states, in pertinent parts: The Board may order use of general water use restrictions and the water use restrictions specified in Part VI for the appropriate water shortage phase for each affected source class. Further, the Board may order any combination in lieu of or in addition to the restrictions specified in Part VI of the restrictions described in Subsection (3), by use or method of withdrawal class, within each source class, if necessary to achieve the necessary percent reduction in overall demand. (emphasis added). General water use restrictions which may be imposed include provisions that facilitate the right of water users in an area to make voluntary agreements among themselves, with the concurrence of the Board or the Executive Director, providing for the mutual reduction, sharing, or rotation of use; restrictions on the total amount of water that may be used, diverted, impounded, extracted, or withdrawn during any day, month, or year during the declared shortage; restrictions on the timing of use, diversion, impoundment, extraction, or withdrawal of water; restrictions on pumping rates and schedules or diversion rates and schedules; or such other provisions or restrictions as are necessary to protect the water resources from serious harm. With the above cited authority, the District can require the withdrawals at the sand mine to be reduced during periods of water shortage within the seven year term of the permit by reducing the total amount withdrawn, controlling the schedule of withdrawals or "by other restrictions which arc necessary to protect the water resources." The hearing officer's conclusion is consistent with the rules and statutes which govern the Board. The exception is rejected. LBCA Exception Number 3 The LBCA takes exception to the hearing officer's Conclusion of Law 63 and Finding of Fact 47 that FRI satisfied the criteria regarding water conservation measures. See Rule 40C-2.301(4)(e), F.A.C. The LBCA reargues the facts which the hearing officer found to support the conclusion. However, the LBCA offered no evidence to rebut the testimony of FRI. In addition, the LBCA cites no authority that the hearing officer's conclusion is contrary to law. Florida Audubon Society v. Department of Environmental Regulation, 9 F.A.L.R. 565 (October 31, 1986). LBCA also renews its attack on the allocation amount, essentially iterating its factual exception which is rejected for the reasons set forth therein. It is improper for this Board to retry the case after the hearing has concluded by altering findings and reweighing evidence. Tampa Wholesale Liquors, Inc., 376 So.2d 1195 (Fla. 2d DCA 1979). LBCA's exception lacks any record citations or legal authority in support of this exception. The conclusion and finding are supported by competent substantial, and uncontroverted, evidence and the exception is rejected. (T. 43-52, 106, 234- 237, 988-989, 1103- 1104, 1111, 1132-1133) LBCA Exception Number 3 (sic). The LBCA takes exception to the hearing officer's Conclusion of Law 63, by arguing that the use of water from the surficial aquifer requires a separate permit. Section 40C-2.051, F.A.C., states: No permit shall be required under the provisions of this rule for the following water uses: Withdrawals of ground or surface water to facilitate construction on or below ground surface ..., in the following circum- stances: ground water may be withdrawn if it is recharged on site to the aquifer from which it was withdrawn by either infiltration or direct injection; surface water may be withdrawn only from wholly owned impoundments or works which are no deeper than the lowest extent of the uppermost water bearing stratum and which have no surface hydrologic connection off site, and the surface water must be recharged on site to the uppermost water bearing stratum by either infiltration or direct injection. This exemption from permitting is applicable here, and therefore, no additional permit is required. An agency's interpretation of its rules is afforded great weight. Franklin Ambulance Service v. DHRS, 45 So.2d 580 (Fla. 1st DCA 1989). LBCA offered no auth-orty or evidence that the District's interpretation is contrary to established law. This conclusion is supported by competent substantial evidence. The exception is rejected. (T. 38-39, 105, 249, 972, 1101-1102). RULINGS ON EXCEPTION TO CONCLUSIONS OF LAW CONTAINED IN POST- HEARING EVIDENTIARY RULING LBCA excepts the hearing officer's rulings in Finding of Fact No. 56 and Conclusion of Law No, 66 excluding LBCA exhibits nos. 61, 64, 71, 75, 76, 78, 79, 80, 82 and 83 as inadmissible for failure of LBCA to comply with subsection 90.956, Fla. Stat., regarding use of summaries of evidence. LBCA takes exception to FRI's objection post-hearing alleging that the exhibits had been admitted. In fact, the exhibits were not admitted at hearing. The LBCA's citation to the transcript is not the hearing officer's ruling on the exhibits. The hearing officer did not admit the ten exhibits on the record, as he did with every other exhibit that he admitted. The LBCA's assertion that it believed the exhibits were admitted is belied by LBCA's failure to list them as admitted in its Proposed Recommended Order on page 3. Therefore, LBCA's claim that FRI's continuing objection was a surprise is without merit. LBCA asserts that FRI cannot make a post-hearing objection to the exhibits in its Proposed Recommended Order and infers gnat FRI's objection to the admission of the exhibits was not preserved at hearing. Rule 40C-1.561, F.A.C., provides for the submission of legal briefs along with proposed findings of fact and conclusions or law. For matters that remain pending at the close of a hearing, a party may file a legal brief in support of its position. FRI did not object to the opinion testimony of the LBCA expert witness, only to the graphic depictions of such testimony. (T. 356). LBCA stated at hearing that the excluded exhibits were simply graphic depictions of the expert's opinion testimony. (T. 354). The record is abundantly clear that FRI preserved its objection to the exhibits and the hearing officer reserved ruling on their admission until the recommended order was issued. (T. 353, 358, 360, 363, 369, 370, 375, 377, 524, 531, 537, 1079-1080, 1178). LBCA essentially asserts that the exhibits are not "summaries" and therefore not subject to subsection 90.956, Fla. Stat., which, of course, the fact-finder found otherwise. LBCA's reliance on Marks v. Marks, 576 So.2d 859 (Fla. 3d DCA 1989) is misplaced. Marks did not hold that expert testimony is not subject to subsection 90.956, but only that an expert is not required to utilize subsection 90.956 when presenting underlying data relied on for his opinion. The hearing officer found that the hydrographs were summaries and the underlying information was not indicated on the summary. The hearing officer allowed FRI time to review the data and present rebuttal. The fact-finder is entitled to great latitude in admitting or excluding summary evidence. Wright v. Southwest Bank, 554 F.2d 661 (5th Cir. 1977)(trial court without jury is entitled to great latitude covering the admission or exclusion of summary evidence). LBCA has failed to show that the hearing officer abused this discretion in excluding the exhibits. LBCA also takes exception that LBCA was denied rebuttal, or surrebuttal, on FRI's rebuttal case. As discussed in the ruling on LBCA's Exception 15, LBCA failed to request rebuttal of FRI's case. The hearing officer allowed cross-examination and LBCA did not offer any additional evidence from LBCA witnesses. Since the LBCA never requested to offer rebuttal testimony, then the hearing officer could not and did not deny that request. It is well-settled that an objection must be preserved during an administrative proceeding or it will be deemed waived. DeMendoza v. First Federal Savings and Loan, 585 So.2d 453 (Fla. 4th DCA 1991)(even if mistake was made in trial, party's waived its right to appeal the issue since it failed to call the deficiency to the court's attention during trial); Yachting Arcade, Inc. v. Riverwalk Condominium Assoc., 500 So.2d 202 (Fla. 1st DCA 1986)(party's failure to object to matters at administrative hearing made those matters unreviewable, even though party claimed fundamental procedural errors, it failed to show how it was prejudiced by any such action or omission; National Dairy Products, Corp. v. Odham, 121 So.2d 640 (Fla. 1959). Therefore, LBCA's exception based on the denial of rebuttal is rejected. LBCA argues that-the proper vehicle for the objection was a motion for rehearing. LBCA does not cite authority for its assertion. Since the hearing officer never ruled on the admissibility, there was no order on which to base a motion for rehearing. Nevertheless, the alleged error, if any, of excluding the exhibits, was harmless. Sims v. Brown, 574 So.2d 131 (Fla. 1991)(exclusion of manual was harmless since experts testified to the same matters in the manual); Little v. Banker's National Life Insurance Co., 369 So.2d 637 (Fla. 3d DCA 1979)(harmless error to exclude letter since witnesses otherwise testified at length as to its contents and conclusions). The LBCA expert testified extensively regarding the basis of each excluded exhibit and the information it depicts in relation to the conclusions of his expert opinion which the hearing officer weighed in rendering his factual findings and conclusions. (T. 346, 349, 351, 352, 358, 359, 364, 366, 371, 373, 411, 456, 457, 458, 481, 486, 501, 504, 507, 509, 511, 512, 516, 517, 518, 519, 542). The hearing officer concluded that even if the exhibits had been admitted it would not have altered his factual findings stating that they had limited probative value. (Conclusion of Law No. 66). Therefore, the exception is rejected. RULING ON RECOMMENDED ORDER'S COMPLIANCE WITH SECTION 120.59(2), FLA. STAT. LBCA asserts that the hearing officer failed to comply with subsection 120.59(2), Fla. Stat., by not providing a sufficiently explicit ruling on each of the parties' proposed findings of fact. Section 120,59(2), Fla. Stat., requires "a ruling upon each proposed finding" The Appendix to the Recommended Order does not contain an omnibus "blanket" ruling on all of LBCA's proposed findings which the courts have found inadequate. Cf. Island Harbor beach Club v. DNR, 476 So.2d 1350 (Fla. 1st DCA 1985); Health Care Management, Inc. v. DHRS, 479 So.2d 193 (Fla. 1st DCA 1985). The Appendix clearly contains a ruling upon each of LBCA's proposed findings. Section 120.59(2), Fla. Stat., requires no more. LBCA relies on Island Harbor Beach Club v. DNR, 476 So.2d 1350 (Fla. 1st DCA 1985), to support this argument. Island Harbor Beach Club, differs significantly from this case. The order Island Harbor Beach Club did not individually address each specific proposed finding as the Recommended Order in this case does. The only reference to proposed findings made in the Island Harbor Beacon Club order was a single paragraph which stated: The parties proposed findings of fact have been considered and where unsupported by the weight of the evidence, immaterial, cumulative, or subordinate. This differs from the Recommended Order in the instant case which specifically addresses each proposed finding and specifies where (by paragraph) in the Recommended Order that proposed finding is addressed. It is elementary to then read the paragraph referred to in the Recommended Order to determine what portion of the proposed finding was accepted. More applicable to this case is the case of Schomer v. Department of Professional Regulation, 417 So.2d 1089 (Fla. 3d DCA 1982). The order in Schomer did not contain specific rulings on each proposed finding submitted by the Appellant. The substance of the final order, however, demonstrated that each finding had been considered and ruled on. The Court noted that, for purposes of complying with Section 120.59(2) Fla. Stat., It would not elevate form over substance." An agency need not Independently quote verbatim each proposed finding and independently dispose of that proposed finding; rather, it is sufficient that the agency provide in its decision a written foundation upon which the reviewing court may assure that all proposed findings of fact have been consider and ruled upon and not overlooked or concealed. Id. at 1090. The Court held that it could discern from the substance of the order that each of the proposed findings were addressed, and to the extent the technical requirements of Section 120.59(2), Fla. Stat., were departed from, the departure did not materially impair the fairness or correctness of the proceedings. Id. at 1091. LBCA merely has to compare the hearing officer's findings with its proposed findings to discern those portions accepted. Therefore, the exception is rejected. RULING ON MOTION FOR REMAND Pursuant, to Rule 1.540(b), Fla. R. Civ. P., LBCA has filed a Motion for Remand asserting that newly discovered evidence establishes that a finding by the hearing officer is inaccurate because of allegedly false testimony by District expert witness, Dr. Larry Lee. The hearing officer found that Lake Brooklyn had been in a period of decline before and after the 1989 aquifer pump test and that due to rainfall deficits Brooklyn Bay was separated from the main body of Lake Brooklyn for at least 18 to 24 months before and during the 1989 aquifer performance test. The hearing officer determined that the rate and character of declines during the pumping were not distinguishable from the declines occurring before and after the test. Thus, he found that impacts to Lake Brooklyn water levels from the pumping were indistinguishable from the declines due to drought. (Finding of Fact No. 30). LBCA asserts that a newly discovered Department of Transportation (D.O.T.) survey, dated October 11, 1988, shows that Brooklyn Bay was not segregated from the remainder of the lake due to drought conditions prior to the 1989 aquifer pump test as testified by Dr. Lee and seeks the Board to remand the issue to the hearing officer for consideration of this new evidence. The only reasons for remand regarding fact finding are if an erroneous legal conclusion by a hearing officer warrants taking of evidence on the issue, or if a factual issue was never ruled upon by the hearing officer. See Miller v. Dept. Envt'l Reg., 5504 So.2d 1325 (Fla. 1st DCA 1987)(agency's modification of legal conclusions necessitated factual findings on issue which hearing officer had initially disregarded as irrelevant) and Cohn v. Dept. of Prof. Reg., 477 So.2d 1039 (Fla. 3d DCA 1985)(when the hearing officer fails to find a specific fact, agency must remand to the hearing officer to do so). Clearly, neither of these reasons have any application to Petitioner's arguments. Although subsection 40C-1.512, F.A.C., provides that the Florida Rules of Civil Procedure are applicable to District administrative proceedings to the extent not inconsistent with Chapter 120 or Chapter 40C-1, the applicability of Rule 1.540(b), Fla. R. Civ. P., is problematic and inconsistent with a subsection 120.57 proceeding. First, the civil procedure rule only applies to final judgments and in this subsection 120.57 administrative proceeding LBCA is attempting to apply the civil procedure rule to a nonfinal recommended order. Second, LBCA has not expressly excepted Finding of Fact No. 30 as not supported by competent substantial evidence or that a Board rule or policy has been incorrectly interpreted /1 , but actually seeks the Board to allow LBCA to supplement the record after remand with new facts for the hearing officer to weigh in applying those facts to the applicable District rules. Thus, unlike a trial court, Finding of Fact No. 30 cannot be altered by this Board if supported by any competent substantial evidence. Section 120.57(1)(b)10., Fla. Stat.; Freeze v. Dept. of Business Regulation, 556 So.2d 1204 (Fla. 5th DCA 1990); School Board of Leon County v. Weaver, 556 So.2d 443 (Fla. 1st DCA 1990). The Board may only consider whether the findings actually made by the hearing officer are sustained by the evidence, and whether, if so, they support the recommended legal conclusions. Cohn v. Dept. of Professional Regulation, 477 So.2d 1039 (Fla. 3d DCA 1985). Unlike a judge with plenary and equitable powers in a judicial setting, this Board, under Chapter 120, cannot authorize fact- finding after a hearing's conclusion except in the most narrow circumstances, none of which are applicable to the motion before the Board. Cf. Manasota 88, Inc. v. Tremor, 545 So.2d 439 (Fla. 1st DCA 1989)(may remand if hearing officer makes erroneous legal interpretation); Cohn, supra.. (may remand if a necessary factual issue was not determined by the hearing officer); Friends of Children v. DHRS, 504 So.2d 1345 (Fla. 1st DCA 1987)(may remand if hearing officer makes erroneous evidentiary ruling). In effect, LBCA wants to utilize a civil procedure rule for the Board to authorize additional fact-finding on a matter already considered by the hearing officer regarding a finding supported by competent substantial evidence. Section 120.57, Fla. Stat., simply does not authorize the Board to take such action. Section 120.57(1)(b)10, Fla. Stat.; Dept. of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981)(chapter 120 does not allow additional or cumulative evidence on matters already considered and the APA does not envision a never-ending process). Consequently, the application of Rule 1.540(b), Fla. R. Civ. P., is inconsistent with Chapter 120 and LBCA is free to raise any alleged error at hearing on appeal of the final order. Even assuming Rule 1.540(b), Fla. R. Civ. P., is applicable to this subsection 120.57 proceeding, LBCA has failed to clearly establish the extraordinary circumstances warranting the granting of its motion. The material issue of whether FRI's proposed pumping would impact the area lake levels already effected by a rainfall deficit was expressly raised by LBCA in its initial petition for hearing as far back as August 1992 and was also an issue stipulated in the Prehearing Stipulation prior to the February 1993 hearing. (Petition for Administrative Hearing paragraph f. 2, 3, 4.; Prehearing Stip. paragraphs B. 2, G. 1). Consequently, LBCA had over five months prior to hearing to elicit all relevant evidence to that Issue. If Rule 1.540(b) was applicable, LBCA's burden would be to clearly establish the following to receive relief: (1) it must appear that the evidence is such as will probably change the-result if a new trial is granted; (2) that it has been discovered since the trial; (3) that it could not have been discovered before one trial by the exercise of due diligence; and (4) that it is material and not merely cumulative or impeaching. City of Winter Haven v. Tuttle/White Construction Inc., 370 So.2d 829 (Fla. 2d DCA 1979); King v. Harrington, 411 So.2d 912 (Fla. 2d DCA 1982), rev denied, 418 So.2d 1279 (Fla. 1982). The predicate for LBCA's motion is that Dr. Lee's testimony regarding the lake separation was false, therefore LBCA could not have exercised due diligence in discovering the alleged new evidence. LBCA has filed no express exception with record support establishing that Finding of Fact No. 30 is not supported by competent substantial evidence and therefore the Board by law cannot alter that factual finding. Section 40C-1.564(3), F.A.C.; Section 120.37(1)(b)10., Fla. Stat.; Freeze, supra.. Consequently, Dr. Lee's testimony is not false. Importantly, Dr. Lee's testimony was not the only evidence supporting this finding. LBCA's own witness, the president of the association, testified that Brooklyn Bay had been segregated for four or five years from the main part of the lake and that he had been able to walk across the lake without getting wet for the last four or five years. (T. 863, 870). Likewise, LBCA's own expert stated that Lake Brooklyn's condition between 1989 to 1991 had receded to such an extent as it was no longer a continuous lake. (T. 317). Accordingly, the predicate for LBCA's motion is factually inaccurate and misplaced. Furthermore, LBCA must clearly establish that even though the exercise of due diligence before the hearing, it would not have discovered the 1988 D.O.T. survey. Brav v. Electric Door-Lift Inc., 558 So.2d 43 (Fla. 1st DCA 1989)(movant's burden to establish due diligence); Plisco v. Union Railroad Co., 379 F.2d 15 (3d DCA 1967)(motion for new trial on newly discovered evidence is granted only where extraordinary circumstances are present). Even though the effects of FRI's proposed pumping on lake levels in time of rainfall deficit was an issue dating back to August 1992, LBCA asserts that it could not have obtained the survey prior to hearing in February 1993 "because of the logistics of requesting public records and the delay in delivery of same." LBCA could have reasonably anticipated that witnesses would testify regarding the disputed issue, particularly its own witnesses, and obtained the survey with the exercise of due diligence. LBCA offers no basis why D.O.T. would not have supplied the survey as required by law or that LBCA could not obtain it and, in fact, the public records law contains a provision for obtaining immediate relief if a request for records is denied. See subsection 119.11, Fla. Stat. In Florida Audubon Society v. Ratner, 497 So.2d 672 (Fla. 3d DCA 1986), a 1981 judgment had been entered finding that limestone mining would be inconsistent with the water management purposes of a water management district's flowage easement on platiff's property. Plaintiff sought a new trial because of newly discovered opposing evidence in a 1980 Corps of Engineers report on the effects of limestone mining. The trial court denied the motion. The appellate court agreed finding that the granting of such motions was disfavored and that the report was prepared in September 1980 well before the trial and judgment in June 1981 and could have been discovered prior to the with the exercise of due diligence. Likewise in this proceeding, the proffered D.O.T. survey was prepared in October 1988, nearly four and one-half years before the February 1993 hearing and LBCA has failed to show that due diligence would not have discovered the survey prior to the administrative hearing in this proceeding. See also, Morhaim v. State Farm Fire & Casualty Co., 559 So.2d 1240 (Fla. 3d DCA 1990)(no new trial granted based on post-judgment affidavits regarding evidence on known issue that could have been discovered prior to trial). LBCA also asserts that Dr. Lee misrepresented the contents of Clark's "Report of Investigations No. 33-Hydrology of Brooklyn Lake Near Keystone Heights, Florida" regarding its conclusions and his opinion concerning the separation of Brooklyn Bay from Lake Brooklyn and thus prejudiced LBCA's case. LBCA argument is an attack on the weight of the conflicting evidence which is the job of the hearing officer to resolve. An expert witness is not required to disclose the facts and data underlying his opinion. Marks v. Marks, 576 So.2d 859 (Fla. 3d DCA 1991). LBCA could have cross examined Dr. Lee regarding the separation. LBCA was aware of the "Clark Report" (T. 844) and even anticipated testimony regarding water levels in its case in chief (T. 846). Indeed, the report was listed by LBCA as its Exhibit 13 in the Prehearing Stipulation, although LBCA chose not to introduce it into evidence during the hearing. Dr. Lee testified not once but twice about the location of the staff gauge (T. 946 and 962-966). On cross, LBCA did not inquire about the location of the staff gauge or the lack of water beneath the bridge. (T. 991-1017). It was LBCA's burden to challenge the factual basis for Dr. Lee's opinion. City of Hialeah v. Weatherford, 466 So.2d 1127 (Fla. 3d DCA 1985). An insufficiency in the expert opinion offered, if any, should have been addressed in cross-examination by LBCA, not by a post-hearing motion. LBCA alleges that the outcome would be different if the DOT survey were part of the evidence. The Board cannot accept new evidence or rule on the admissibility of evidence which was not presented to the hearing officer. The Finding of Fact to which LBCA refers states six reasons why the correlation between the pumping at the sand mine and its effects on Lake Brooklyn water level were not established. See Recommended Order, Finding of Fact 32. The location of the staff gauge in Brooklyn Bay rather than Lake Brooklyn was one of those six. LBCA's error was in not knowing the location of the staff gauge (T. 418-420) rather than the testimony of Dr. Lee. Therefore, LBCA's allegation that but for the testimony of Dr. Lee, the hearing officer would have found differently is unfounded. The mere chance that the hearing officer might have found differently is insufficient to remand the hearing for additional fact finding. Cluett v. Dep't of Professional Regulation, 530 So.2d 351, 355 (Fla. 1st DCA 1988). The courts look with disfavor on motions based on newly discovered evidence because to look with favor would bring about a looseness in practice and encourage counsel to neglect to gather all available evidence for a first trial by speculating upon the outcome, and then, being defeated, become for the first time duly diligent in securing other evidence to cure the defects or omissions in their showing upon the first trial. Rushing v. Chappell, 247 So.2d 749 (Fla. 1st DCA 1971); Henderson Sians v. Fla. Dept. of Transp., 397 So.2d 769 (Fla. 1st DCA 1981). It is well-settled that no abuse of discretion occurs on the part of an agency by refusing to direct a remand to receive evidence which could have been introduced during the course of the original proceedings. Department of Transportation v. J.W.C., Inc., 396 So.2d 778 (Fla. 1st DCA 1981) LBCA has failed to clearly establish a right to relief and therefore the motion is denied. RULING ON MOTION FOR OFFICIAL RECOGNITION AND MOTION TO SUPPLEMENT THE RECORD LBCA has filed a Motion for Official Recognition and to Supplement the Record seeking the Board to accept into evidence the October 11, 1988 D.O.T. survey which was the subject of LBCA's Motion for Remand and also the U.S.G.S. publication "Report of Investigations No. 33-Hydrology of Brooklyn Lake Near Keystone Heights, Florida", by Clark, also referenced In LBCA's Motion for Remand. The Board is not a fact-finder in this subsection 120.57 proceeding and it is reversible error for the Board to supplement the record through post-hearing evidence. Section 120.57(1)(b)10, Fla. stat., Marks v. Northwest Florida Water Management District, 566 So.2d 46 (Fla. 5th DCA 1990)(court refused to take judicial notice of factual matter based on records that could have been offered at administrative hearing); Nest v. Dept. of Professional Regulation 490 So.2d 987 (Fla. 1st DCA 1986); Shongut v Mark, 173 So.2d 708 (Fla. 3d DCA 1965)(Where matters raised on motion for relief from judgment could have been available to movant during trial proceedings, denial of motion was not abuse of discretion); Weaver, supra.. Moreover, the Motion for Remand has been denied. LBCA's post- hearing motions will be available as part of the record of this proceeding for purposes of any appeal which may be pursued. ACCORDINGLY, IT IS HEREBY ORDERED: The Recommended Order dated June 4, 1993, attached hereto as Exhibit A, is adopted in its entirety except as modified by the final action of the Governing Board of the St. Johns River Water Management District (Ruling on LBCA Exception 23). Florida Rock Industries' application for consumptive use permit no. 2-019-0012AUR is hereby granted under the terms and conditions as provided herein. The post-hearing Motion for Remand, Motion for Official Recognition and Motion to Supplement the Record filed by LBCA are hereby denied. DONE AND ORDERED this 14th day of July 1993, in Palatka, Florida. ST. JOHNS RIVER WATER MANAGEMENT DISTRICT By: JOE E. HILL CHAIRMAN RENDERED this 14th day of July 1993. By: SANDRA L. BERTRAM ASSISTANT DISTRICT CLERK
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Respondent, Florida Rock Industries (FRI or applicant), a Florida corporation, operates a nine hundred and eighty acre sand mine known as the Goldhead Sand Mine (Goldhead) in Clay County, Florida. The mine is located approximately six miles northeast of Keystone Heights and fifty miles southwest of Jacksonville. FRI has operated the mine since 1958. With the exception of eighty acres of land owned by FRI, the remainder of the land on which the mine is located is owned by Carroll-Phillips Investors and has been leased to FRI since 1973. The mine lies within the jurisdictional boundaries of respondent, St. Johns River Water Management District (District), a special taxing district created by the legislature and charged with the responsibility for administering and enforcing permitting programs for consumptive uses of water. FRI is accordingly subject to the District's regulatory authority. As a necessary component of its operation, FRI withdraws approximately 2.09 million gallons per day (MGD) of groundwater from the Floridan Aquifer which is used in the production of sand. This use of water is made pursuant to a consumptive use permit (no. 2-019-0012U) issued to FRI by the District on December 11, 1984, and which allows it to consume 762.85 million gallons per year of groundwater for hydraulic dredging, cleaning and purification of sand at the Goldhead mine. The permit was issued for seven years. In order to continue groundwater withdrawal and use, FRI has applied to the District for a seven-year renewal of its permit with no request for an increase in allocation. That request, which has been identified as application no. 2-019-0012AUR, is the subject of this proceeding. After conducting a review of the application, making site inspections, and performing various studies and analyses, on July 28, 1992, the District, through its staff, gave notice of its intent to approve the application with certain conditions. Thereafter, on August 6, 1992, petitioner, Lake Brooklyn Civic Association, Inc. (petitioner), a nonprofit corporation made up of property owners in adjacent areas of Clay County, filed a petition under Subsection 403.412(5), Florida Statutes, seeking to contest the proposed action. Petitioner is a citizen of the state and has an interest in activities that may injure or harm the state's water resources. Thus, it has standing to bring this action. As twice amended, the petition generally alleged that the consumptive use would (a) cause an unmitigated adverse impact on adjacent land uses, including a significant reduction in water levels in Lake Brooklyn and Spring, Gator Bone, and White Sands Lake, which lie generally to the south and southwest of the mine site, (b) cause a deterioration in water quality, (c) cause economic or environmental harm, and (d) be for purposes other than operating a sand mine. The broad three-pronged test to be used in determining whether the permit should be issued is whether the proposed consumptive use is a reasonable- beneficial use, whether it will interfere with presently existing legal uses of water, and whether it is consistent with the public interest. In addressing this test, the parties have presented extensive expert testimony involving highly technical subject matter. As might be expected, the experts reached different conclusions as to whether the criteria have been met. In resolving these conflicts, the undersigned has accepted the more credible and persuasive evidence, and this accepted testimony is recited in the findings below. The Mining Site Operations The entire mine site is around 7,000 feet east to west, about one mile north to south in a rectangular shape, and lies within the lake region of northeast Florida. The mine's product is silica sand used for concrete and masonry mortar for construction throughout northeast Florida. As such, it produces an economic benefit to the region. The mine is located on one of the few sites in the northeast Florida area with deposits suitable for construction purposes and is the closest sand mine to the Jacksonville market. In 1958, FRI installed three ten-inch diameter production wells in the center of the mine site. One well is 450 feet deep while the other two are 460 feet deep. The 1984 permit authorizes withdrawals of 762.85 million gallons of water per year, an average rate of 2.09 MGD, and a maximum rate of 3.75 MGD. This rate is consistent with the amount of water used at other mines in north Florida and is based on FRI's projected maximum annual use. The use is industrial commercial for sand mining while the source is the Floridan Aquifer, the lowest acceptable water quality source available capable of producing the requested amount of water. Water use withdrawal from the three wells is monitored by in-line flow meters installed in 1991 as a water control and conservation measure. The pumping rate depends on the number of fixtures and valves open in the system at the time of pumping. However, the actual rate of water production cannot be varied at any of the pumps since the wells are connected to "on or off" pumps. The need for water in the dredge pond and processing plant dictates how long FRI will have a pump in operation. Water from the wells is first discharged into a dredge pond, twenty feet deep, which is an approximately 155-acre excavation lake located in the southwest portion of the mine site. In periods of low water, the water is used to float the dredge, which requires some three feet of water to float, and in conjunction with a bulldozer, to wash sand down from the bank toward the dredge. After the dredge sucks up sand and water from the bottom of the pond, this mixture is slurried to an on-site processing plant where more water is added to sort and wash the sand. The end product (silica sand) is then loaded onto trucks which haul the product to the market. After processing, the moisture content of the sand product is only 5 percent. The tailings (unusable waste product) and wash water are then routed by a slurry pipe to settling areas and eventually recirculated through a system of ditches, canals and water control structures back into the dredge pond. No chemicals are used in the operation. Although FRI's contract with the lessor of the property requires it to maintain the dredge pond elevation at a specified elevation, this requirement cannot be fulfilled during drought conditions. The mining operation is a closed system to the extent there is no point source (surface water) discharge from the system. Even so, a significant amount of water loss occurs during the process, mainly through percolation into the ground. Other water loss occurs through evaporation. The receiving water from the site is primarily the surficial aquifer which recharges the downgradient lakes, including Gator Bone, White Sands, and Spring Lakes. Water may also travel through the surficial aquifer into the sinkholes on site and thence to the Floridan Aquifer. However, not all water is lost to sinkholes in the settling area because they are filled with fine materials. This is confirmed by the fact that water returns to the dredge pond. The mining operation has not affected this pattern. The lakes in the region are replenished solely by rainfall, either by direct rain on the lakes or through water seeping through sands. FRI plans to mine approximately thirty additional acres at the Goldhead Site during the next seven years. To this end, it has secured a management and storage of surface waters permit from the District which allows construction of this additional acreage. It also has acquired an industrial waste water discharge permit from the Department of Environmental Regulation. It is expected that within the next two to four years, FRI will abandon the current dredge pond and start a new one on the north side of the property to accommodate mining operations, or in the alternative, extend the current pond to the north. Water conservation A water conservation plan has been submitted by FRI. Measures already implemented include (a) using in-line flow meters to monitor amounts of withdrawal, (b) not pumping for more than seventeen hours per day to prevent exceeding the maximum allotment per day, (c) regularly monitoring withdrawals to ensure allocations as not being exceeded, (d) extending the plant discharge further past the sinkholes in the settling area to maximize return water to the dredge pond, (e) raising water levels in the settling area to facilitate flow back to the dredge pond, (f) during periods of drought using bulldozers instead of water spray to break loose sand formations, (g) curtailing production when further production would cause the plant to exceed allocations, (h) replacing water-cooled bearings in plant machinery with bearings that do not require water, and (i) restricting dredge mobility to allow operation in shallower water. No other water conservation measures are economically, environmentally or technologically feasible. Hydrogeologic characteristics at the mine site The mine site, which is located within the Upper Etonia Creek surface water drainage basin, generally slopes from 200 feet NGVD on the north to 120 feet NGVD on the south, and is underlain, in order, by approximately 10 to 50 feet of sand (known as the surficial aquifer), 200 feet of dense, moist clay (known as the Hawthorn Formation), and then a highly transmissive limestone formation (known as the Floridan Aquifer). The surficial aquifer flows from north to south across the site while water falling on the site primarily moves downgradient through the surficial aquifer. There are five sinkholes on the site, all having predated the mining activities, which may provide a conduit for recharge from the surficial aquifer to the Floridan aquifer. Except where the Hawthorn formation, a confining unit to the Floridan aquifer, is breached, recharge through the Hawthorn formation is very slow because of the dense clays of that formation. Aquifer characteristics within the Floridan aquifer beneath the site and immediately adjacent thereto are relatively uniform. As noted earlier, 5 percent of the water leaves the mine site as moisture in the sand product. The remaining 95 percent of water is immediately recharged on site to the surficial aquifer through various impoundments, and after entering the surficial aquifer, that portion of the water which is not recirculated to the dredge pond for reuse in the mining process moves either vertically into the Hawthorn formation, vertically into the Floridan aquifer through a sinkhole, downgradient through the surficial aquifer to one of the lakes south of the mine, or evaporates. It is noted that notwithstanding the mining operations, the flow in the surficial aquifer system still parallels the topography as it existed prior to mining, and the same saturated thickness within the surficial aquifer exists on site as existed before mining occurred. Hydrogeologic Characteristics of the Region The region in which the mine is located is very high in topographic altitude indicating that it is a groundwater recharge area. Like the mine site, the region has three distinct geologic units underlying the surface, including sands and clayey sands (surficial aquifer), thick clays (Hawthorn formation) and limestones and dolomites (Floridan aquifer). The Hawthorn unit serves as a confining unit or semi-confining unit between the surficial aquifer, or water table, in the upper unit and the Floridan aquifer in the lower unit. When solution channels develop within the limestones in the lower unit, the openings can cause the overlying units to collapse, forming sinkholes. Thus, when the Hawthorn formation is breached by the development of a sinkhole, water can move rapidly through the overlying units to the Floridan aquifer. Many of the lakes within the region exist over collapsed features within the limestone units beneath them and are referred to as sinkhole lakes. The rate of recharge from each lake depends on the rate of leakance into the Floridan aquifer. Some lakes leak fast, others not at all. For example, Lake Brooklyn fluctuates about two feet, Lake Johnson about thirteen feet, and Pebble Lake about thirty feet. Lake Brooklyn, which lies several miles to the southwest of the mine, is the fourth lake in a chain of lakes consisting of Blue Pond, Sand Hill Lake, Lake Magnolia, Lake Brooklyn, Keystone Lake, Lake Geneva, Oldfield Pond, and Half Moon Lake. All of these lakes are in a different surface water drainage sub-basin within the larger Upper Etonia Creek Basin than the mine site. The lakes above Lake Brooklyn in the chain are at higher elevations than Lake Brooklyn, and when rainfall is sufficient, water flows from Blue Pond to Sand Hill Lake, to Lake Magnolia, and then to Lake Brooklyn through Alligator Creek. Direct rainfall and surface water inflows from Alligator Creek represent the most significant sources of water to Lake Brooklyn. Other pertinent lakes in the area are Spring, White Sands and Gator Bone Lakes, which lie almost directly along the mine site's southern boundary and are each less than a mile from the mine's dredge pond. During the period records have been maintained for water levels in Lake Brooklyn, it has fluctuated over a range of slightly more than twenty feet. Although average rainfall within the Upper Etonia Creek Basin is approximately fifty-one inches per year, during the period from 1974 through 1990 the basin experienced a continuing period of below normal rainfall resulting in a cumulative deficit of rainfall for this period of minus seventy-eight inches. Since 1988, the lake region has experienced a severe drought. Because the lakes in the region have risen or fallen in correlation with periods of below normal or above normal rainfall, lake levels have fallen dramatically in recent years. Water levels in Lake Brooklyn began declining in 1974 at the same time the period of below normal rainfall began and continued declining until 1991, a year in which the region experienced above normal rainfall. These low water levels were exacerbated by the cessation of surface water inflows from Alligator Creek in late 1988 which continued until late 1992 when such flows resumed. The cessation of surface water flows into Lake Brooklyn during the period from 1988- 1992 were a direct consequence of the extended period of below normal rainfall in the region. Finally, very little, if any, of the groundwater flowing in the Floridan aquifer beneath Lake Brooklyn flows toward the mine site. Water Quality Impacts Numerous analyses have been conducted to determine water quality of the site, water quality in nearby homeowners' water systems, and water quality impacts of the proposed consumptive use. They include analyses conducted by the District in 1989 and 1992, including sampling of water quality and an analysis of the background levels for certain parameters, and an assessment of data from HRS testing in March 1989 and May 1992. In addition, FRI conducted water quality sampling on site in eight wells, the dredge pond and a settling pond. Finally, petitioner reviewed water quality samples from off-site private water supply wells taken on March 1, 1989, and on July 22, 1992, by unknown persons. As to this latter sampling, petitioner had no knowledge of the protocol used in obtaining the 1989 samples and offered no evidence of reliability of the 1992 data. Thus, the reliability of its assessment is in doubt. None of the water quality samples taken from the mine site indicate a violation of state water quality standards. However, petitioner posits that a chemical reaction is likely occurring at the deeper levels of the dredge pond, possibly causing undissolved iron in sediments to become dissolved, and then traveling in solution through the clays of the Hawthorn formation into transmissive units and finally to off-site homeowners' wells which may be in those units. This theory was predicated on the results of 1989 HRS sampling which revealed some wells near White Sands Lake experienced elevated levels of iron and manganese, and an assumption that a chemical reaction was occurring because herbicides were used in the dredge pond. However, only one application of a herbicide occurred, and that was in 1990, or one year after iron was detected in the off-site homeowners' wells. Petitioner agreed that the 1990 application of herbicide could not have affected the 1989 sampling. It also agreed that these reactions were less likely to be occurring in a pond with water flowing through it. In this case, water is circulated through the dredge pond by being pumped into it, pumped out of it, and allowed to flow back into the pond. FRI determined that no state water quality standards were exceeded for iron, manganese, zinc, turbidity, total dissolved solids, chloride and nitrate in the surficial aquifer and Hawthorn formations at the site. The wells used for monitoring water quality were installed and sampled using standard quality assurance techniques. Water quality from the surficial aquifer was emphasized because if iron or manganese were present in the water, it would most likely be detected in wells in the surficial aquifer because they are detected in wells immediately downgradient of the source. If the chemical reaction is occurring, water leaving the dredge pond is contaminated, and such water will follow the path of least resistance by going either to the Hawthorn formation or the surficial aquifer. Because of the geologic properties of the Hawthorn, this path is the surficial aquifer. At least 70,000 gallons per day enter the surficial aquifer from the bottom of the dredge pond. Since contaminated water would receive water quality treatment by absorption of the Hawthorn but not in the surficial, water in the surficial aquifer represents the worst case scenario as to the possible presence of contaminated water. The chemical reactions which petitioner believes may be occurring in the deeper portions of the dredge pond require the presence of an acidic environment and reduced oxygen levels in the water. FRI's water quality testing indicates that water in the dredge pond is not acidic, but rather is neutral. Therefore, any reaction which might be occurring could not be on a large enough scale to affect water quality. Moreover, even if the reactions were occurring, it was established that the clays in the Hawthorn formation would absorb iron, and such absorption would not take place in the surficial aquifer. Therefore, it is found that there would be no adverse impact to groundwater including the surficial aquifer and that water quality standards will be met. Although petitioner presented evidence that in 1989 HRS testing of 12 out of 212 homeowners south of the mine site indicated that three homeowners had iron concentrations in excess of state drinking standards and two had manganese concentrations in excess of state drinking water standards, this is insufficient to prove that the mining operation has an adverse impact on water quality. To begin with, some of the wells sampled were thirty to fifty years old even though the life expectancy of a well is fifteen to twenty years. Some were constructed of galvanized steel pipe, and those wells also indicated high turbidity levels. High turbidity levels are caused by a number of unrelated factors and will result in increased iron levels that are not representative of the quality of the groundwater in the formation, but rather of the iron-laden sediments in the formation, or from the casing material. With the exception of one well (the Sutton well), the water from the homeowners' wells did not exceed background water quality for iron and manganese. The elevated iron and manganese concentrations in the Sutton well are caused by a number of factors other than the mine. Then, too, a proper sampling technique may not have been followed during the 1989 sampling event thus rendering the results unreliable. Finally, properly constructed monitoring wells should be used to assess the quality of the groundwaters, and the wells sampled in 1989 and 1992 were not of that type. The Mine's Impact on Water Levels Perhaps the issue of primary concern to members of petitioner's organization is whether the mining operations have contributed to the decline in water levels of nearby lakes, including Lake Brooklyn. This is because of serious declines in the levels of those water bodies over the past years, and a concomitant decrease in the value of homes which surround the lakes. In an effort to resolve this and other water level issues, the parties made numerous studies of the current and anticipated water level impacts from the site. This data collection effort was far more extensive than is normally conducted for a mine of this size. They included aquifer performance tests by FRI and the District, steady state and transient computer modeling of impacts on the Floridan and surficial aquifers by FRI, an analysis of correlations of pumping and water level changes in lakes and aquifers by FRI and petitioner, photolinear and fracture trace analyses of structural conditions by FRI and petitioner, a stratigraphic analysis of a geologic core retrieved from the site by FRI, installation of deep and shallow wells for groundwater monitoring by FRI, groundwater flow mapping by FRI, review of literature by all parties, review and analysis of rainfall data by all parties, analysis of evaporation data by the District and petitioner, and an analysis of geophysical logs from wells by FRI and the District. Aquifer performance tests Aquifer performance tests, which enable hydrologists to reach conclusions regarding the characteristics of the aquifers tested, were conducted in January 1989 by the District and June 1991 by FRI. In a typical pump test, an aquifer production well pumps at a constant rate, while water levels are monitored in observation wells at specified distances from the pumping well. In this case, the tests measured effects of pumping from the mine production wells for periods ranging from 78 hours to 108 hours at approximately twice the average rate of 2.09 MGD. The zone of influence of pumping was measured at wells placed at the property boundaries, at Gold Head State Park, east of the mine, as well as wells to the south of the mine for the 1989 tests. During the 1989 tests, lake levels for Lake Brooklyn and Gator Bone, White Sands and Spring Lakes were recorded. The effects of pumping were approximately equal for wells spaced approximately equal distances along the east, south and west. Thus, for purposes of analysis, the Floridan aquifer was considered isotropic and homogeneous. This is consistent with assumptions commonly made by geologists in Florida. Computer models were calibrated with actual results of these tests to account for variations caused by this assumption. The District has concluded, and the undersigned so finds, that no changes in the levels of the lakes are attributable to pumping. Further, the aquifer itself will not be harmed by the use of the amount of water requested in the application. The tests indicate the maximum amount of drawdown in the Floridan aquifer from pumping at twice the average rate is 0.1 to 0.6 foot in neighboring wells. Effects of actual pumping will be approximately one-half the test observed amounts on an average pumping day. For example, based on the 1989 test results, drawdowns in the Floridan aquifer at the boundary of the FRI property during an average day of pumpage should not exceed 0.2 to 0.3 feet while drawdowns beneath Spring, White Sands and Gator Bone Lakes to the south of the mine should be less than 0.2 feet. The tests provide actual measurements of the effects of pumping. Indeed, all three lakes were declining before the 1989 test began and continued to decline after the test was ended. However, the rate of decline during the seventy-eight hours of the test was not distinguishable from declines which occurred before or after the test. Computer modeling As a supplement to the aquifer performance tests, FRI performed computer modeling to determine effects of the water withdrawal and use on the Floridan and surficial aquifers. These models are used by hydrologists to predict impacts associated with a particular source of stress, such as pumpage, to an aquifer and, in this case, occurred in three phases. The first was an impact model which determined the drawdown in the Floridan aquifer. The second occurred as a result of questions raised by residents of the sand mine area and included a "steady state" model simulation of impacts of the Floridan and surficial aquifers. The third occurred as a result of questions raised by petitioner and included new data along with both a "transient state" and "steady state" simulation. All three phases of modeling were consistent in finding that the effects of pumping are non-existent or negligible, that is, a predicted drawdown in various locations of the Floridan aquifer of from less than 0.1 to 0.3 feet on an average pumping day, and they corroborated the drawdowns observed during both the 1989 and 1991 aquifer performance tests. Petitioner's witness Dr. Stewart criticized FRI's 1992 "steady state" computer modeling on the grounds FRI had insufficient data to conduct the modeling, the constant head boundaries were set too close to the pumping, a transient model should have been run, and the modelers assumed that the Floridan aquifer is isotropic and homogeneous. However, Dr. Stewart failed to review or consider (a) any technical data or information gathered since September 10, 1992, (b) the 1991 transient model, (c) the December 1992 transient model, (d) the computer disc for the July 1992 steady state model, (e) the December 1992 steady state model, (f) the December 1992 calibration, (g) the basis for setting the constant head boundaries, or (h) the data from the 1989 and 1991 pump tests. All of this data was part of the evidence FRI's experts used in formulating their opinions. Dr. Stewart agreed that he could not form any conclusions on this data and that the Floridan aquifer is rarely completely homogeneous and isotropic, but that he and other modelers regularly make that assumption. The modeling was calibrated to replicate actual subsurface and pumping conditions. Maximum drawdown in the Floridan aquifer under normal pumping conditions is modeled to be 0.1 to 0.2 feet beneath White Sands Lake. This is drawdown with no replacement, although there will be leakance back to the Floridan aquifer through sinkholes on the site and surcharge to Gator Bone, White Sands and Spring Lakes through the surficial aquifer. The impact to the Floridan is minor compared to normal water level fluctuations in that aquifer of 3 to 5 feet per year. In fact, barometric pressure changes can cause water level changes of up to one foot per week. Lake levels Because many of the lakes in the area leak downward, water levels in the lakes could be affected by the changes in levels in the Floridan aquifer. Indeed, for lakes connected to the Floridan aquifer, changes in the level of the potentiometric surface (or pressure) in the Floridan aquifer can have an impact on the level of the lakes. However, a decrease in lake levels will be less than that of the decrease in the Floridan aquifer, depending on the rate of leakance. Consequently, even if Lake Brooklyn and Gator Bone, White Sands or Spring Lakes do leak to the Floridan aquifer, the amount of decline in lake levels attributable to pumping at the mine will be less than the 0.1 to 0.2 foot modeled by FRI. This drawdown effect will not accumulate over time, but rather will remain constant after reaching steady state conditions. Even if levels in Gator Bone, White Sands and Spring Lakes are affected by drawdowns in the Floridan aquifer, that effect will be more than offset by surcharge to the surficial and Floridan aquifers from the dredge pond. The net effect to the lakes would be either positive or immeasurable. This is confirmed by the computer modeling results. Lake stage and precipitation data for Spring, White Sands and Gator Bone Lakes indicates that these lakes, like other lakes in the region, rise and fall in correlation with precipitation patterns. For example, in 1991, a year with above normal rainfall, Spring Lake rose 4.1 feet in elevation, White Sands Lake 2.9 feet in elevation, and Gator Bone Lake rose 3.5 feet in elevation. Similarly, water levels were monitored before, during and after the 1989 aquifer performance test in a portion of Lake Brooklyn known as Brooklyn Bay. Because of low rainfall, Brooklyn Bay was separated from the main body of Lake Brooklyn for at least eighteen to twenty-four months before and during the 1989 aquifer performance test. The lake had been in the midst of a long term decline both before and after the test, and the rate and character of declines during the period of pumping were not distinguishable from the declines occurring before or after the test. It is accordingly found that the impacts on water levels in Lake Brooklyn, if any, as a result of pumping from the Floridan aquifer are immeasurable. According to petitioner's witness Boyes, activities at the mine have an influence on water levels in Gator Bone, White Sands and Spring Lakes by "increasing the rate of decline". However, the witness could not quantify the degree of impact but stated the impacts during the 1989 aquifer performance tests were a decline of .03, .03 and less than .03 foot, respectively, for each lake. The witness also opined that, based on District staff guage readings during the 1989 aquifer performance testing, pumping at the mine resulted in a .04 foot decline in lake level for Lake Brooklyn during the 1989 testing period. This decline had a net result of .8 acre decrease in the previously 600 acre plus Lake Brooklyn. By comparison, the drought caused a decline of 162 acres in 1989 and an additional 158 acres in 1990. It is noted that the decline in each lake would be less during average pumping conditions, or about one-half of the .04 foot decline, since average pumping is one-half of the aquifer performance test pump rate. Finally, petitioner's witness Dr. Stewart opined that there is insufficient data to determine whether any impacts to lake levels are occurring. It is found, however, that these drawdowns are less than the .1 to .2 foot modeled by FRI and should have no significant adverse impacts on water levels. Preferential flow theory Petitioner presented evidence of a purported correlation between pumping at the mine and water levels in a Floridan aquifer well located on the southwest side of Lake Brooklyn, 4.3 miles from the mine, and lake levels in Brooklyn Bay, 3 miles from the mine. According to petitioner, this serves as proof of a "preferential flow pattern" in the Floridan from Lake Brooklyn to the mine, and that this preferential flow results in a .04 to .05 foot drawdown in the Floridan aquifer at Lake Brooklyn. However, this correlation is deemed to be incorrect for several reasons. First, if a true correlation existed, recovery from pumping effects would occur after pumping ceased, but the Lake Brooklyn well showed recovery in the Floridan aquifer prior to cessation of pumping, and did not recover when pumping stopped at the end of the 1989 aquifer performance testing. Second, if the premise is correct, impacts from pumping would occur in wells closer to the pumping earlier than in wells farther away, but the Lake Brooklyn well, 4.3 miles from pumping, showed drawdown began before that of the Goldhead well, only 1,000 feet from pumping. Third, levels for the Lake Brooklyn well should have declined during both the 1989 and 1991 aquifer performance tests but the levels rose during the 1991 tests. As to the water level changes in the well during the 1989 test, witness Boyes believed these may reflect declines due to hydrologic conditions rather than the pump test. Fourth, if a true correlation existed, impacts would be experienced following the same hydrographic pattern as pumping, but the Lake Brooklyn well's hydrographics did not correlate to the pumping schedule at all times of the year. It should also be noted that at least two other large scale water users are withdrawing water from wells within 1.25 miles from the Lake Brooklyn well and may affect that well's water levels. Further, the variations in the well may be explained by many other variables, such as barometric pressure changes, diurnal fluctuations in water levels, rainfall, and pumping from closer wells. Finally, Brooklyn Bay is now physically separated from Lake Brooklyn, and it was improper for petitioner to rely on lake level information from Brooklyn Bay to support its theory regarding Lake Brooklyn. To further support its hypothesis that a preferential flow path exists between the mine and Lake Brooklyn, petitioner utilized a "photo linear analysis" or "fracture trace analysis", which is based on an interpretation of surface topographic features to determine the presence of subsurface hydrogeologic features such as solution channels in the limestones of the Floridan aquifer. However, without extensive subsurface testing, which is not present here, such analyses are only interpretative to determine what, if any, subsurface features are present and their hydrogeologic effect. It is noted that subsurface fractures are present less than 50 percent of the time, and if present, the features may be hydrologic barriers as well as preferential flow paths. According to witness Boyes, a photolinear feature (fracture) exists from Lake Brooklyn through Spring Lake and across the mine property to Goldhead State Park. If such a feature did exist, however, the drawdown during the aquifer performance tests and other pumping would be greater adjacent to Spring Lake than adjacent to Lake Brooklyn. This was not observed. Moreover, petitioner's witness Dr. Stewart thought the photolinear was only inferred and had a lower degree of confidence that it exists. FRI's witness Fountain established that elongated surface features are more likely to demonstrate linear subsurface features. Both witness Boyes and Dr. Stewart agreed with this conclusion. That being the case, the postulated Lake Brooklyn-mine photolinear is not demonstrated, and continuation of the elongated axis of Lake Brooklyn and Brooklyn Bay would bypass the mine site altogether. Because no investigations have been conducted to demonstrate that these postulated photolinear features exist, and the more reliable results of the aquifer performance tests indicate otherwise, the preferential flow path theory is deemed at best to be highly speculative. If the Lake Brooklyn-mine photolinear feature offered a preferential flow path as opined by witness Boyes, the resulting drawdown would be elongated with a zone of influence extending from the mine westward toward Lake Brooklyn. Therefore, areas closer but not on the feature would experience less drawdown than areas farther away which are on the feature, the zone of influence would extend from the mine's wells through Spring Lake toward Lake Brooklyn causing declined water levels along the feature, and areas closer to the pumping wells, such as Spring Lake, would experience a greater decline than areas farther away, such as Lake Brooklyn. However, evidence offered by petitioner shows that the water levels between Lake Brooklyn and the mine are actually higher than in surrounding areas. Finally, even if petitioner's preferential flow path theory were true, there is no evidence that the pumping from the mine is resulting in significant and adverse impacts as required by District rules. Therefore, it is found that the sand mine does not cause significant and adverse impacts on the water levels in the Floridan aquifer or on the water levels of Lake Brooklyn or Gator Bone, White Sands or Spring Lakes. Rather, the lake levels in each of the four lakes in issue here are directly or indirectly a function of rainfall. Intermediate and surficial aquifers Whether an intermediate aquifer is present beneath the mine site is subject to dispute. All parties agree that, on a regional scale, the Hawthorn formation contains some discontinuous water-bearing lenses that in some places produce water in quantities sufficient for household use. The lenses occur in carbonate deposits in the formation, although not all carbonate deposits or all water bearing units will necessarily transmit water. The evidence is less than persuasive that the Hawthorne formation contains carbonate units which are present on the sand mine site as transmissive beds. This finding is based on FRI's review of on-site core boring information and other data from the site. In addition, this finding is corrorborated by District witness Lee, who concluded that water from the site is not discharging into the Hawthorn, but rather into the surficial aquifer. This is because clays comprising the Hawthorn have low permeability, causing water to flow laterally through the surficial aquifer rather than into the Hawthorn. With respect to impacts to the surficial aquifer, FRI presented evidence that during mining operations, the surficial aquifer will be surcharged by up to five feet. When mining operations cease, water levels will return to natural conditions. This evidence was not contradicted. Impacts on Property Values and Recreation Testimony regarding the property values for lake front properties on Lake Brooklyn and Gator Bone, White Sands and Spring Lakes was offered by petitioner's witness Price. He established that values have declined since mid- 1989 as a result of a loss of recreational value suffered as water levels have receded. However, witness Price stated that he would not expect a 0.1 foot drop in lake levels to negatively affect property values. Since the declines predicted by petitioner are far less than a 0.1 foot drop, it is apparent that FRI's water use will not result in harm to property values in the area. Similarly, while it is true that declining water levels have impaired recreational uses of Lake Brooklyn and Gator Bone, White Sands and Spring Lakes, FRI's water use cannot be blamed for such impairment. Environmental Impacts The anticipated impacts of the water use on the wetlands and wildlife resources of the area were addressed by FRI witnesses Peacock and Lowe. According to Peacock, who analyzed the wetland vegetation, the dominant species and their adaptions, the wildlife resources and their adaptions, and the general ecology of the area, the water levels in the adjacent lakes have historically fluctuated greatly, and wildlife that use the lakes have adapted to these fluctuations. His opinion that the mine's water use will not have any significant adverse impact on the environment of Lake Brooklyn and Gator Bone, Spring or White Sands Lakes is hereby accepted. Based upon witness Lowe's inspection of the three downgradient lakes, his past knowledge of Lake Brooklyn, the aquifer performance tests, and Dr. Lee's conclusion that the maximum drawdown in the lakes would be 0.1 foot, Lowe opined that the proposed water withdrawal will not cause environmental harm. In addition, such a drawdown will not adversely affect off-site vegetation or cause unmitigated adverse impacts on adjacent wetlands or other types of vegetation. These conclusions were not contradicted and are hereby accepted. Compliance with rule criteria To obtain a consumptive use permit, an applicant must give "reasonable assurance" that the proposed water use is a reasonable beneficial use, will not interfere with any presently existing legal use of water, and is consistent with the public interest. These broad criteria are further explained by criteria enunciated in Rule 40C-2.301(3)-(6), Florida Administrative Code, and sections 9.0 et seq. and 10.0 et seq. of the Applicant's Handbook adopted by reference in Chapter 40C-2, Florida Administrative Code. Findings as to whether these criteria have been satisfied are set forth below. To obtain a renewal of a consumptive use permit, an applicant must first give reasonable assurance that the proposed use of water is a "reasonable beneficial use". For a use to be considered reasonable beneficial, the criteria enumerated in Rule 40C-2.301(4) and (5), Florida Administrative Code, must be satisfied. First, paragraph (4)(a) of the rule and section 10.3(a) of the handbook require that the water use must be in such quantity as is necessary for economic and efficient utilization, and the quantity requested must be within acceptable standards for the designated use. The evidence shows that FRI has used a reasonably low amount of water necessary to continue operations at the mine, it has implemented some water conservation methods and tried or considered others that proved to be inefficient or not economically feasible, and the requested amount of water is within acceptable standards for sand mines operating within the District. Then, too, some ninety-five percent of the water pumped from the wells is recirculated for reuse in the mining process or is recharged back into the surficial and Floridan aquifers on site. Finally, there is no surface discharge of water outside the mining site. Accordingly, it is found that this criterion has been satisfied. Paragraph (4)(b) of the rule and section 10.3(b) of the handbook require that the proposed use be for a purpose that is both reasonable and consistent with the public interest. The proposed use of the water is to produce sand used in construction materials. This is a reasonable use of water and results in an economic benefit to the region by producing a valuable product. Accordingly, it is found that the use is both reasonable and consistent with the public interest. All parties have stipulated that the Floridan aquifer is capable of producing the requested amounts of water. This satisfies paragraph (4)(c) of the rule and section 10.3(c) of the handbook which impose this requirement. The next criterion, paragraph (4)(d), as amplified by section 10.3(d) of the handbook, requires that "the environmental or economic harm caused by the consumptive use must be reduced to an acceptable amount." The evidence shows that during mine operations, the surficial aquifer is being surcharged by up to five feet. When they cease, the water levels return to natural conditions. The maximum drawdown anticipated in the Floridan aquifer at the property boundary was 0.3 feet and less than or equal to 0.1 feet for most of the area outside the mine site. At most, this equates to a maximum lake level decline of 0.04 feet at Lake Brooklyn, 0.03 feet at Gator Bone and White Sands Lakes, and less than 0.03 feet at Spring Lake. Thus, FRI's usage of water has had, and will have in the future, little, if any, immediate or cumulative impact on the levels of the area lakes. Further, the more persuasive evidence supports a finding that these lowered lake levels or aquifer levels will not result in environmental or economic harm to the area. In addition, the District has proposed to incorporate into the permit a condition that FRI implement a detailed monitoring plan which will detect any overpumping causing lake level changes and a concomitant adverse impact to off-site land uses. Therefore, this criterion has been satisfied. Paragraph (4)(e) and section 10.3(e) require the applicant to implement "all available water conservation measures" unless the applicant "demonstrates that implementation is not economically, environmentally or technologically feasible." The rule goes on to provide that satisfaction of this criterion "may be demonstrated by implementation of an approved water conservation plan as required in section 12.0, Applicant's Handbook: Consumptive Uses of Water." Because FRI's water conservation plan insures that water will be used efficiently, as required by section 12.3.4.1. of the handbook, this criterion has been met. The next paragraph provides that "(w)hen reclaimed water is readily available it must be used in place of higher quality water sources unless the applicant demonstrates that its use is either not economically, environmentally or technologi-cally feasible." Since the unrebutted testimony establishes that reclaimed water is not readily available to the mine site, it is found that paragraph (4)(f) has been satisfied. Paragraph (4)(g) of the rule and section 10.3(f) of the handbook generally require that the lowest acceptable quality water source be used. Since the evidence shows that the Floridan aquifer is the lowest acceptable quality water source, this requirement has been met. Paragraphs (4)(h) and (i) provide that the consumptive use "should not cause significant saline water intrusion or further aggravate currently existing saline water intrusion problems" nor "cause or contribute to flood damage." The parties have stipulated that these requirements are not in dispute. The next paragraph provides that the "water quality of the source of the water should not be seriously harmed by the consumptive use." The uncontradicted evidence shows that the source of the water for the proposed use will not be seriously harmed from either saltwater intrusion or discharges to the Floridan aquifer. Paragraph (4)(j) and section 10.3(g) have accordingly been met. Paragraph (4)(k) and section 10.3(k) require that the water quality of the receiving body of water "not be seriously harmed" by the consumptive use. In this case, there is no surface water discharge from the mine site. Thus, the only relevant inquiry here is whether the receiving water (surficial aquifer) will be "seriously harmed" by the consumptive use. To determine compliance with this criterion, the District compared water quality samples from the mine site and surrounding areas with the DER monitoring network to ascertain whether state water quality numerical standards and natural background levels were exceeded. The relevant standards are found in Rule 17-520.420, Florida Administrative Code. Monitoring data from eight wells and from the dredge pond indicate there are no water quality violations resulting from the sand mine operations. Petitioner has contended that water from the dredge pond provides a significant source of water to an intermediate aquifer, which would also be a receiving body of water. However, the evidence shows that any contaminants resulting from the dredge pond flowing into an intermediate aquifer will also be contained in the surficial aquifer. The clays of the Hawthorn formation would absorb and filter out iron and manganese as they traveled to a water transmissive zone. Therefore, the concentrations sampled in the suficial aquifer downgradient from the dredge pond represent the highest concentrations. Since the concentrations in the surficial aquifer do not violate water quality standards, the same finding as to concentrations in the intermediate aquifer can be made. Further, the rule criteria require consideration of the future water use's effect on water quality, and if the intermediate aquifer is in fact a receiving water as contended by petitioner, the reactions which could cause water quality violations are presently occurring. There is no reason to believe they would cease if the mine ceases operation, and the mining operation adds oxygen to the water, which reduces the possibility of the reaction described. Therefore, this criterion has been satisfied. The parties have stipulated that the requirements of paragraph (4)(l) have been fulfilled. Finally, rule 40C-2.301(5)(a) provides that a proposed consumptive use will not meet the criteria for issuance of a permit if such proposed water use will significantly cause saline water encroachment or otherwise cause water flows or levels to fall below certain minimum limits set forth in the rule. The evidence shows that, to the extent these criteria are applicable and in dispute, they have been satisfied. Miscellaneous The contention has been made that insufficient site-specific information was submitted by the applicant to determine the effects of the proposed use of water at the sand mine. In this regard, the evidence shows that FRI consultants installed monitoring wells, performed core borings, and took soil samples at the site. The geology of the site was verified by core boring, review of geologic logs and drilling wells. Slug tests were performed to measure the hydraulic conductivity of the material in which the monitor wells were set, and a step drawdown analysis was performed to measure hydraulic conductivity. A number of monitoring wells to measure water levels data were installed before and after running the 1991 aquifer performance tests, and groundwater modeling in both the transient and steady state modes were run using data that was collected in the field. In addition, water quality samples were collected to evaluate a water budget for the dredge pond, and FRI conducted an assessment of the environmental impacts to the wetland and wildlife resources of the area lakes, including White Sands, Spring and Gator Bone Lakes. Besides this submission and analysis, the District reviewed United States Geological Survey (USGS) topographic maps, potentiometric maps and aerial photographs of the area, water levels of the surrounding lakes, potentiometric surfaces in Floridan and intermediate aquifer wells, geophysical logs for wells, rainfall records, the core generated by FRI consultants, and scientific literature relied upon in making consumptive use permitting assessments. It also monitored the 1991 aquifer performance test and reviewed the resultant model. Before and after submission of the application, the District conducted aquifer performance testing at the site and evaluated the 1991 aquifer performance test conducted by FRI consultants. Finally, the District assessed water quality impacts of the sand mine in 1989 and in the present by site visit, sampling of the Floridan production well and dredge pond, and reviewing sampling data from both monitor wells and homeowner wells. It also reviewed information on water quality data gathered from other sand mines and applied data from the DER background monitoring network. Therefore, the contention that insufficient site-specific information was submitted and considered is rejected. Petitioner has offered into evidence petitioner's exhibits 61, 64, 65, 71, 75, 76, 78-80, 82 and 83. A ruling on the admissibility of the exhibits was reserved. The exhibits, which are based on data collected by the District and the USGS, are hydrographs showing water levels from lakes and monitoring wells during so-called "normal mine operations" on selected dates in 1988, 1989 and 1991. Although FRI was given copies of the exhibits ten days prior to hearing, it was not informed of the source of the data until final hearing. As it turned out, petitioner's witness had reviewed records over an extensive period of time and selected two or three days out of that time period as being representative of "normal" conditions. However, FRI established that, when longer periods of time were reviewed, the correlations alleged to exist by the graphs did not in fact exist and thus they did not represent normal conditions. Attorney's fees and costs FRI has requested an award of attorney's fees and costs on the theories petitioner interposed various papers and brought and participated in this action for "an improper purpose" within the meaning of Subsections 120.57(1)(b)5. and 120.59(6), Florida Statutes. In addition, petitioner has filed a motion for sanctions on the ground four motions filed by FRI were filed for an improper purpose within the meaning of Subsection 120.57(1)(b)5., Florida Statutes. It may be inferred from the totality of the evidence that petitioner did not intend to participate in this proceeding for an improper purpose. Likewise, the same inference may be made with respect to the four motions filed by FRI. Therefore, fees and costs (sanctions) are not warranted for either party.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered by the District granting application number 2-019-0012AUR as proposed by the District in its notice of intent to approve the application issued on August 6, 1992. DONE AND RECOMMENDED this 4th day of June, 1993, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5017 Petitioner: 1-3. Partially accepted in finding of fact 1. 4. Partially accepted in finding of fact 2. 5-6. Partially accepted in finding of fact 6. 7. Rejected as being unnecessary. 8. Partially accepted in finding of fact 9. 9. Partially accepted in finding of fact 8. 10-12. Partially accepted in finding of fact 7. Partially accepted in findings of fact 6 and 7. Partially accepted in finding of fact 7. 15-16. Partially accepted in finding of fact 6. 17-18. Partially accepted in finding of fact 7. Partially accepted in finding of fact 6. Partially accepted in finding of fact 7. Rejected as being unnecessary. Partially accepted in finding of fact 11. 23-24. Partially accepted in finding of fact 7. 25. Partially accepted in findings of fact 7 and 8. 26. Partially accepted in finding of fact 7. 27-28. Partially accepted in finding of fact 14. Partially accepted in finding of fact 29. Partially accepted in finding of fact 11. 31-33. Partially accepted in findings of fact 14-16. 34-35. Partially accepted in finding of fact 15. 36-42. Partially accepted in findings of fact 14-16. Partially accepted in finding of fact 16. Partially accepted in finding of fact 31. Rejected as being irrelevant. Partially accepted in finding of fact 28. Partially accepted in finding of fact 33. Partially accepted in finding of fact 32. Partially accepted in finding of fact 23. Partially accepted in finding of fact 12. Partially accepted in finding of fact 14. 52-53. Partially accepted in finding of fact 11. Partially accepted in finding of fact 37. Partially accepted in finding of fact 11. Rejected as being contrary to the more persuasive evidence. See finding 23. 57-58. Partially accepted in finding of fact 11. 59-61. Partially accepted in finding of fact 12. Partially accepted in finding of fact 13. Partially accepted in finding of fact 11. 64-71. Partially accepted in findings of fact 32-36. 72. Partially accepted in finding of fact 11. 73-74. Partially accepted in finding of fact 6. 75. Partially accepted in finding of fact 8. 76-77. Partially accepted in findings of fact 8 and 11. Rejected as being contrary to the more persuasive evidence. See finding of fact 11. Partially accepted in finding of fact 8. Partially accepted in finding of fact 37. Partially accepted in finding of fact 11. Partially accepted in finding of fact 22. 83-120. Partially accepted in findings of fact 23 and 24. 121-139. Partially accepted in findings of fact 25-27. 140-144. Rejected since even if true, the impacts are not significant. 145. Partially accepted in finding of fact 18. 146-158. Partially accepted in findings of fact 18-20. 159-171. Partially accepted in finding of fact 39. 172-177. Partially accepted in findings of fact 40 and 41. Respondent (District): 1. Partially accepted in finding of fact 3. 2-4. Partially accepted in finding of fact 1. 5-6. Partially accepted in finding of fact 2. Partially accepted in finding of fact 3. Partially accepted in finding of fact 2. Partially accepted in findings of fact 1, 3 and 5. Partially accepted in finding of fact 7. Partially accepted in finding of fact 5. Partially accepted in finding of fact 1. Partially accepted in finding of fact 9. Partially accepted in finding of fact 5. Partially accepted in finding of fact 2. Partially accepted in finding of fact 6. 17-18. Partially accepted in finding of fact 7. 19-22. Partially accepted in finding of fact 11. 23. Partially accepted in finding of fact 37. 24-40. Partially accepted in findings of fact 12-16. 41-51. Partially accepted in findings of fact 11. 52-59. Partially accepted in findings of fact 23 and 24. 60-64. Partially accepted in finding of fact 25. Partially accepted in finding of fact 45. Partially accepted in finding of fact 23. 67-69. Partially accepted in finding of fact 11. Rejected as being unnecessary. Partially accepted in finding of fact 7. 72-73. Partially accepted in finding of fact 11. 74-77. Partially accepted in finding of fact 28. Partially accepted in finding of fact 23. Partially accepted in finding of fact 24. 80-81. Partially accepted in findings of fact 23 and 24. 82-83. Partially accepted in finding of fact 29. 84. Partially accepted in finding of fact 11. 85. Partially accepted in finding of fact 28. 86-90. Partially accepted in finding of fact 30. 91. Partially accepted in finding of fact 32. 92-94. Partially accepted in finding of fact 33. 95. Partially accepted in finding of fact 34. 96. Partially accepted in finding of fact 36. 97-100. Partially accepted in finding of fact 17. 101. Partially accepted in finding of fact 19. 102-103. Partially accepted in finding of fact 21. 104-121. Partially accepted in findings of fact 19 and 20. 122-130. Partially accepted in finding of fact 21. 131-133. Partially accepted in finding of fact 20. 134-138. Partially accepted in findings of fact 40 and 41. 139. Partially accepted in finding of fact 33. 140-141. Partially accepted in finding of fact 10. 142. Partially accepted in finding of fact 48. 143. Partially accepted in finding of fact 49. Respondent (FRI): Partially accepted in findings of fact 1 and 2. Partially accepted in findings of fact 3 and 4. Partially accepted in finding of fact 5. Partially accepted in findings of fact 2 and 6. Partially accepted in finding of fact 11. Partially accepted in findings of fact 6 and 7. 7-8. Partially accepted in finding of fact 10. Partially accepted in finding of fact 8. Partially accepted in finding of fact 9. Partially accepted in finding of fact 13. Partially accepted in finding of fact 15. Rejected as being unnecessary. Partially accepted in finding of fact 22. Partially accepted in finding of fact 23. Partially accepted in finding of fact 24. Partially accepted in finding of fact 25. Partially accepted in finding of fact 26. Partially accepted in finding of fact 27. Partially accepted in finding of fact 28. Partially accepted in finding of fact 31. 22-24. Partially accepted in finding of fact 32. Partially accepted in finding of fact 33. Partially accepted in finding of fact 34. Rejected as being unnecessary. Partially accepted in finding of fact 35. 29-30. Partially accepted in finding of fact 36. 31-35. Partially accepted in finding of fact 37. Partially accepted in finding of fact 38. Partially accepted in finding of fact 17. Partially accepted in finding of fact 18. Partially accepted in finding of fact 19. 40-41. Partially accepted in finding of fact 20. 42-45. Partially accepted in finding of fact 21. Partially accepted in finding of fact 40. Partially accepted in finding of fact 41. Partially accepted in findings of fact 40 and 41. 49. Partially accepted in finding of fact 39. 50-51. Partially accepted in finding of fact 42. 52. Partially accepted in finding of fact 43. 53. Partially accepted in finding of fact 44. 54. Partially accepted in finding of fact 45. 55. Partially accepted in finding of fact 46. 56. Partially accepted in finding of fact 47. 57-58. Partially accepted in finding of fact 49. 59. Partially accepted in finding of fact 51. 60. Partially accepted in finding of fact 52. 61. Partially accepted in finding of fact 54. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary, irrelevant, cumulative, not supported by the more credible, persuasive evidence, or a conclusion of law. COPIES FURNISHED: Henry Dean, Executive Director St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Patrice Flinchbaugh Boyes, Esquire Post Office Box 1424 Gainesville, Florida 32602-1424 Peter B. Belmont, Esquire 511 31st Street North St. Petersburg, Florida 33704 Wayne E. Flowers, Esquire Jennifer L. Burdick, Esquire Post Office Box 1429 Palatka, Florida 32178-1429 Marcia Penman Parker, Esquire Emily G. Pierce, Esquire 1301 Gulf Life Drive Suite 1500 Jacksonville, Florida 32207
The Issue Whether or not the Petitioner, Dog Island Company, is entitled to the grant of a default permit from the State of Florida, Department of Environmental Regulation, premised upon a violation on the part of the Respondent of the conditions of Section 120.60(2), Florida Statutes, for the alleged failure on the part of the Respondent to respond to the application within the prescribed period of time in the above referenced section, thereby entitling the Petitioner to the grant of the requested permit without further justification on its part. Whether or not on the facts and evidence in this cause, the Petitioner, Dog Island Company, is entitled to the requested permit, which is the subject of this controversy.
Findings Of Fact This case concerns the application of Dog Island Company, Petitioner, to excavate a canal on Dog Island, a barrier island off the coast of Florida. This canal would be approximately 825 feet long, 85 feet wide, and 4 feet deep. At present the canal is partially completed. The initial application permit filed with the State of Florida, Department of Environmental Regulation, was made on December 10, 1976, and the terms and conditions of that application may be found in the Petitioner's Exhibit No. 1 admitted into evidence. This application is by the "short-form" method; however, it was later determined that the application needed to be filed on the "long form," in view of the amount of material to be dredged and filled. Consequently, on June 6, 1977, the Petitioner filed its reapplication and that reapplication may be found as Petitioner's Exhibit No. 9 admitted into evidence. The Petitioner by its action raises two points. The first point considers the Petitioner's contention that the Respondent must issue a default permit to the Petitioner in view of the Respondent's alleged violation of the conditions of Section 120.60(2) Florida Statutes. More particularly, the Petitioner asserts that the Respondent violated the conditions of Section 120.60(2), Florida Statutes, when it, the Respondent, stated to the Petitioner that the Petitioner must fulfill the requirements of Section 253.77, Florida Statutes, as a necessary prerequisite to the granting of an application for a dredge and fill permit. The second point of the petition is a prayer that the permit he granted on the merits of the request, if it is determined that the Petitioner is not entitled to a default permit. Turning to a consideration of the initial point raised by the petition, it may be further categorized as one, a general attack on the Respondent's treatment of the Petitioner's application and reapplication permit, in the context of the requirements of Section 120.60(2), Florida Statutes; and, two, the Respondent's alleged disallowance of the permit premised upon the belief that Section 253.77, Florida Statutes, would not allow the permit to be granted until the conditions of that portion of Chapter 253, Florida Statutes, had been complied with. The questioned provision of Chapter 120, i.e., Section 120.60(2), Florida Statutes, states in pertinent part: 120.60 Licensing.- * * * (2) When an application for a license is made as required by law, the agency shall conduct the proceedings required with reason- able dispatch and with due regard to the rights and privileges of all affected parties or aggrieved persons. Within 30 days after receipt of an application for a license, the agency shall examine the appli- cation, notify the applicant of any apparent errors or omissions, and request any addi- tional information the agency is permitted by law to require. Failure to correct an error or omission or to supply additional information shall not be grounds for denial of the license unless the agency timely notified the applicant within this 30-day period. The agency shall notify the applicant if the activity for which he seeks a license is exempt from the licensing requirement and return any tendered application fee within 30 days after receipt of the original appli- cation or within 10 days after receipt of the timely requested additional information or correction of errors or omissions. Every application for license shall be approved or denied within 90 days after receipt of the original application or receipt of the timely requested additional information or correction of errors or omissions. . . . By its argument herein, the Petitioner is convinced that the Respondent failed to notify the Petitioner within thirty (30) days after receipt of the initial application, of any apparent errors or omissions or to request any additional information the agency is permitted by law to require, again within the thirty (30) day period. This has a direct bearing in the mind of the Petitioner on the effective date of the license permit approval or denial, in relationship to the requirement that the license/permit be granted within ninety (90) days after the receipt of the original permit or receipt of the timely requested additional information or correction of errors or omissions. Factually, we have the initial application of the Petitioner which was filed on December 10, 1976, and received that same date. This was responded to by two items of correspondence. One, dated January 6, 1976, from the Panama City District Office of the Respondent, that being reflected in Petitioner's Exhibit No. 3 admitted into evidence; and a second exhibit, which is a January 10, 1977, correspondence from the central office of the Respondent, this item being found as Petitioner's Exhibit No. 5 admitted into evidence. Petitioner's Exhibit No. 3 notifies the Petitioner that his application is on the wrong form. The proper form should have been the "long form." (The initial application had been submitted on the "short form.") Therefore, on that basis alone, the ninety day requirement for issuance of the application was tolled. Subsequent to being informed by the Respondent that the application must be filed on the "long form," the Petitioner hired the firm of Barrett, Daffin and Figg, Architects, Engineers, Planners, Inc., to assist in the formulation of a reapplication. This document was filed June 6, 1977, and in the body of the document it is represented that this matter is a reapplication. A copy of this reapplication started the thirty-day clock for the Respondent to notify the applicant of apparent errors or omissions and request additional information permitted by the law, and it ran from June 6, 1977. The additional effect of the reapplication was to start a new ninety-day clock for approving or denying the permit and this clock was running from June 6, 1977, or from receipt of the timely requested additional information or correction of errors or omissions. On July 11, 1977, an employee of the Respondent filed what purports to be additional requests for information addressed to the Petitioner. The contents of this request may be found as Petitioner's Exhibit No. 10 and Respondent's Exhibit No. 7 admitted into evidence. This request is clearly outside the thirty day limitation set forth in Section 120.60(2), Florida Statutes, pertaining to the right of an agency to request additional information founded upon any apparent errors or omissions on behalf of the Petitioner, or any additional information the Respondent is permitted by law to require. Nonetheless, the Petitioner met with the Respondent to address the questions raised by the July 11, 1977, correspondence. This meeting was held on July 21, 1977, and out of this meeting the Petitioner, through its agent, responded in writing to the completeness summary of July 11, 1977. This response was dated July 25, 1977, and may be found as Petitioner's Exhibit No. 14 admitted into evidence. These responses were acknowledged by the Respondent on a copy of its July 11, 1977, completeness summary, this being Respondent's Exhibit No. 7. These acknowledgments show the date, July 26, 1977, and create the requirement on the part of the Respondent that it approve or deny the application within ninety days of the date of July 26, 1977. Within ninety days of that date, specifically on October 14, 1977, the Respondent issued the letter of intent to deny the permit; a copy of this letter of intent to deny may be found as Respondent's Exhibit No. 11 admitted into evidence. By its actions of responding to the July 11, 1977, completeness summary, the Petitioner has acquiesced in the right of the Respondent to make such request, notwithstanding the fact that the request had been made thirty days after the June 6, 1977, reapplication had been filed. The October 14, 1977, letter of intent to deny the permit application was timely and no default permit should be issued under the terms and conditions of Section 120.60(2), Florida Statutes. The Petitioner raises the additional point that Respondent was denying the permit application solely on the basis of the Respondent's contention that Section 253.77, Florida Statutes, had not been complied with. This impression on the part of the Petitioner came about after it had requested issuance of a default permit on November 17, 1977, under the belief that Section 120.60(2), Florida Statutes, required the permit to be issued. The Respondent, in the person of its secretary, issued a letter of November 29, 1977, in which document the secretary states that the permit cannot be granted because Section 253.77, Florida Statutes, has not been complied with in that proof of payment for state- owned dredge material is not reflected. Section 253.77, Florida Statutes, has the following language: 253.77 State lands; state agency authoriza- tion for use prohibited without consent of agency in which title vested.- No department, including any division, bureau, section, or other subdivision thereof, or any other agency of the state possessing regulatory powers involving the issuance of permits shall issue any permit, license, or other evidence of authority involving the use of sovereignty or other lands of the state, title to which is vested in the Board of Trustees of the Internal Improvement Trust Fund or the Department of Natural Resources under chapter 253, until the applicant for such permit, license, or other evidence of permission shall have received from the Board of Trustees of the Internal Improvement Trust Fund the required lease, license, ease- ment, or other form of consent authorizing the proposed use and exhibited it to such agency or department or subdivision thereof having regulatory power to permit such use. This act shall not apply to any permit, license, or other form of consent to take the regulated action which gas issued and outstanding on June 23, 1976. It can be seen by an examination of that section that it does not require payment for state-owned dredge material. It simply requires that the applicant have permission of the Board of Trustees of the Internal Improvement Trust Fund, in the person of the Department of Natural Resources. Moreover, there are no regulations existing which require that proof of payment be a precondition to any issuance of a dredge and fill permit by the Respondent. Nevertheless, the October 14, 1977, letter of intent to deny was sufficient compliance with the requirements of Section 120.60(2), Florida Statutes, and obviated the necessity to Issue a dredge and fill permit on a default basis. The issue in this cause should therefore be considered on its merits, and if the Petitioner prevails on the merits, then the permit should be granted conditioned upon the necessary approval of the State of Florida, Department of Natural Resources, on the question of payment for the fill material. This opinion is held because an examination of all the testimony and other items of evidence in this case leads to the conclusion that the land waterward of the mean high water line, at the mouth of the proposed canal, belongs to the State of Florida. (The land above the mean high water line at the site of the proposed canal is land which is owned by the Petitioner.) What then is the determination to be reached on the merits? The initial question that should be addressed on the issue of the merits of the case, is the question of what class of waters is found in the St. George Sound, which is the body of water that is fronted by the mouth of the proposed canal. The argument between the parties is on the issue of whether the waters are Class II or Class III waters. The significance of the difference between the classification is the fact that Class II waters require a more careful consideration of the environmental issues, as stated in Rule 17-4.28(8), Florida Administrative Code. The parties offered certain maps for consideration on the question of whether the waters were in fact Class II or Class III. These maps may be found as Petitioner's Exhibit No. 23, and Respondent's Exhibits Nos. 13 and 15 admitted into evidence. The real question, however, is whether or not the area in dispute meets the criteria for classification as a Class II body of water. That criteria pertains to the inquiry whether the site, either actually or potentially, has the capability of supporting recreational commercial shellfish propagation and harvesting. From the testimony offered in the course of the hearing, it is evident that the eventuality and potential does exist as outlined in Rule 17-3.08, Florida Administrative Code. It exists because of the existence of fish, oysters and shrimp in the immediate vicinity of the proposed canal. As a consequence, the Petitioner must have a plan of procedure which adequately protects the project area and areas in the vicinity of the project from significant damage of the site as a source of commercial or recreational shellfish harvesting and as a nursery area for fish and shellfish. This particular requirement for dealing with Class II waters only has importance because it creates a responsibility on the part of the applicant to adequately address the question of the marine life for the reasons stated above. In fact, the Petitioner has offered its explanation of how it intends to protect the marine life in these Class II waters at a time when the project is being constructed and subsequent to the construction. However, this effort at explanation of its protection of the shellfish and other related marine life found in the Class II waters is not convincing. If the canal is completed, certain forms of marsh grasses and attendant habitat will be removed, thus interfering with the function of the detrital food chain and associated food webs which are found near the proposed open end of the canal. This would result in the diminution of the marine resources. This can be seen by an examination of the Petitioner's Composite Exhibit No. 16, which is a series of photographs of the area and part of the Respondent's Exhibit No. 1, which contain further photographs of the area. Both of these sets of photographs have been admitted into evidence. Effectively, what exists at the site is a marsh area at the end of the canal nearest the sound, and a type of pond at the closed end of the canal. Furthermore, the removal of this marsh area will have no positive benefit to the public at large. This can be seen by a comparison of the proposed canal and an existing canal which is located in the immediate vicinity. There is a marked similarity between the length, width and depth of the proposed canal and the existing canal. In addition, the existing canal is a dead-end canal. In the existing canal, there is a substantial buildup of anaerobic muck at the closed end of the canal due to poor circulation and flushing by action of the tides. The water quality in the existing canal is also very poor in the measure of the dissolved oxygen count and this condition is not conducive to the survival of marine live. Although there is a worse condition, when speaking of anaerobic muck, that has built up in the proposed canal due to less circulation, there is no reason to believe that there will be any positive flushing effect to the proposed canal by completing the proposed canal and removing the marsh area. There is also a legitimate concern of possible salt water intrusion into the fresh water lens which serves as a potable water supply for residents of the island. Additionally, the experience in the existing canal has shown a development of shoaling at the open end of the existing canal and it is reasonable to expect the same type of effect in the proposed canal. This would further diminish the flushing of the waters in the canal and cause an unsatisfactory concentration of dissolved oxygen, bringing about problems such as the anaerobic muck and resulting difficulty for marine life. For the reasons stated above, the Respondent is justified in denying the reapplication for permit made by the Petitioner to excavate a dead-end canal of 825 feet long and 85 to 90 feet wide by 4 feet deep at the mean low water mark. The Proposed Findings of Fact and Conclusions of Law submitted by the parties have been examined, and where appropriate have been incorporated in this order. Those that do not comport with the Findings of Fact and Conclusions of Law of the undersigned are rejected.
Recommendation It is recommended that the application for permit to excavate a dead-end canal as set forth in the reapplication of the Petitioner be denied. DONE and ENTERED this 7th day of June, 1978, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Daniel S. Dearing, Esquire 424 North Calhoun Street Tallahassee, Florida 32302 Alfred W. Clark, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact Petitioner seeks to irrigate 450 acres of pasture land. In preparing its application Petitioner consulted the soil conservation office to obtain the amount of water required under extreme drought conditions. Petitioner's maximum pumping capacity is 2,500 gallons per minute, 108 million gallons per month, or 5.56 gallons per acre per minute. The longest period in which applicant recalls running its pumps continuously was 3 weeks. This occurred during a drought period and after the pumps had been out of operation for an extended period. During normal drought conditions Petitioner would expect to run its pumps 18 days per month. At the pumping capacity available to Petitioner this would amount to 64.8 million gallons of water per month. The maximum monthly allocation recommended by Respondent was 66 million gallons. The source of water from which an allocation is sought is the Florida aquifer and none of the water removed therefrom by this Petitioner will return. The Florida aquifer for which the water herein requested will be obtained is presently being mined, i.e. more water is being withdrawn therefrom than is going back into the aquifer. In evaluating the application the C&SFCD engineer took the 30 to 40 years annual rainfall, the consumptive water use for the crops to be grown and the difference between these figures as the annual supplemental irrigation required. Correcting these figures for evapotranspiration rates and allowing for drought conditions occurring 2 out of 10 years the figures of 66.5 million gallons, or 263 acre feet per month maximum usage was reached. Respondent proposed two special conditions upon the Petitioner. One, that Petitioner submit a water quality analysis from the pump discharge in May and October of each year. The second condition was that a measuring device be installed upon the pump to measure the amount of water pumped. The water quality analysis will cost Petitioner approximately $70 per year for the test alone. An hours of operation clock on the pump will suffice for the water measuring device.
Findings Of Fact The Petitioner is the record owner of certain contiguous lots in Escambia County, Florida, which were part of a subdivision originally platted and recorded in 1926. Three of those lots, contiguous to each other, are waterfront lots lying along the southern shore of Bayou Garcon in Escambia County. A portion of the northern boundary of those lots, as originally platted and recorded and conveyed to Petitioner, extends beyond the current upland and into the waters of Bayou Garcon, a Class III Florida Water body. That portion of the lots extending into the bayou is roughly triangular in shape, measuring approximately 125 feet from the northwest corner of the property eastwardly to the shoreline and approximately 40 feet from the northwest corner of the property south to the shoreline. See Petitioner's Composite Exhibit C. Immediately adjacent to the inundated portion of Bayou Garcon, that is the shoreline, is a so-called "beach berm," consisting of a sand deposit historically built up by wave action. This beach berm is well vegetated, primarily with juncus and also with spartina patens. Immediately landward of this beach berm, and physically separated by it from the open waters of Bayou Garcon, is a so-called juncus marsh. This juncus or salt-brackish marsh is vegetated predominately with black needle rush (juncus roemerianus), which is gradually supplanted by sawgrass (cladium jamaicense) near the junction of the marsh area with the landward upland of the three lots. This marsh area extends almost all the way across all three lots in a region running roughly parallel to the course of the bayou. The marsh area terminates in upland, however, on the most easterly lot so that a portion of that lot's upland runs continuously from the landward boundary along Gorham Road to the edge of the open waters of Bayou Garcon on the waterward edge of the beach berm in question. While the beach berm serves to isolate the marsh area to some extent from the open waters of Bayou Garcon, vegetation is continuous from the marsh across the beach berm to the waters of the bayou in a number of places or for most of its length across the waterward boundary of the three lots in question. The open waters of Bayou Garcon and the waters present in the marsh do exchange. The evidence was uncontroverted that the beach berm is overflowed by tidal waters during occasional storm tides, during the course of a typical year, and by other unusually high tides, such as Spring tides. The berm appears to be more frequently inundated from a point lying at the northwesterly corner of the three lots even at normal high tides. Thus, although there is some conflicting evidence regarding the frequency with which the waters of the bayou exchange with the marsh waters, there is no question that this exchange of waters does occur and thus that water salinity varies in the marsh and in Bayou Garcon as a result of this exchange and that the various characteristic elements of the marshes' biological productivity are exported to the waters of the bayou thereby. The marsh and the adjacent littoral zone underlying Bayou Garcon currently perform a number of relevant biological functions. These include the uptake of nutrients from upland runoff, fertilizers, heavy metals and the like and the production of detrital material, which is exported from the marsh during periods of tidal exchange to form part of the nourishment of the estuarine food chain. The marsh and the adjacent littoral zone of the bayou also constitute an important habitat for marine life forms and other wildlife. It constitutes a nursery ground for fish, shrimp, crabs, amphipods, worms, mollusks and other species. The smaller species are in turn fed upon by larger predators such as wading birds, larger fin fishes and the like. The marsh and its littoral zone is thus important to commercial and recreational interests involving fisheries, both sport and commercial. The Petitioner's proposed project consists of the erection of a bulkhead faced with "riprap" along the northerly boundary of the three contiguous lots, running approximately 125 feet, which boundary and proposed bulkhead would include part of the waters of Bayou Garcon waterward of the current shoreline. The Petitioner then proposes to place 1,745 cubic yards of fill in the area landward of that bulkhead extending across the littoral zone of the waters of the bayou, across the beach berm referenced above and back-filling the entire marsh to the upland portion of the subject lots. The placement of this bulkhead, riprap and associated back-filling will eliminate essentially all of the biological and ecological functions performed by the marsh, as well as the adjacent intertidal and littoral zones across the water frontage of the three lots. The project, as currently proposed, would replace these functions with a new source of negative impacts to Bayou Garcon, Perdido Bay and related State waters, including the deposition of additional nutrients such as lawn fertilizers and septic tank leachates associated with development, which can fertilize and cause excessive algae growth and resultant retardation of dissolved oxygen levels in the waters involved. Resultant development of the filled lots will cause additional water quality degradation in the form of pesticides and coliform bacteria emanating from septic tank leachate, associated with the upland development. Development of waterfront land in the Bayou Garcon area has increased in recent years. Much of the development occurring in the past involved filling marshes, such as that involved in the case at bar. Substantial areas of salt marsh have been filled and substantial areas remain in a relatively natural state along the bayou in the area of the proposed project. The cumulative effect of development in the area, that is the bayou, its littoral zone and adjacent salt marshes, of the type and in the manner proposed by the Petitioner, will result in significant degradation of water quality, as well as a substantial loss of the biological functions previously described and delineated in Section 403.918(2), Florida Statutes, with resulting substantial adverse impact on the public interest. Prior to the filing of the permit application, the Petitioner's consultants met with a representative of the Department at the project site, whereupon the Department's representatives advised them that the Department had certain objections to the project as it was then proposed. They discussed these problems concerning the adverse environmental impact of the project, and the Department proposed modifications, during the free-form review stage of the permit application, intended to lessen the environmental impacts while still protecting the existing shoreline from erosion, which was one of the objects of the Petitioner in applying for the permit. The Petitioner, however, elected not to modify the design of the project to incorporate the changes or all of the changes suggested by DER, so that, after a review of the application the Department issued a notice of its intent to deny it. A permit had been issued by the Department for the same property on November 9, 1978, which authorized a dredge and fill project similar in scope and configuration to that sought in the instant proceeding, contingent upon receipt of all necessary State and Federal governmental authorizations. The Department did not assert jurisdiction over the subject marsh area at that time, apparently taking the position that there was a break in the continuity of the jurisdictional vegetation across the middle of the beach berm, which constituted a continuous gap across the entire waterward frontage of the property, so as to sever the vegetative connection to State waters. That 1978 permit authorized construction of a seawall along the waterward side of the berm and around a group of trees growing at the northeast corner of the property, immediately proximate to the shoreline. It also authorized the placement of fill landward of the seawall and in the subject marsh area. That marsh area was designated as an area "to be filled" on the relevant permit drawings. The Petitioner began installation of that project, pursuant to that 1978 permit, in July 1978, after obtaining the necessary authorization from the United States Army Corps of Engineers on May 18, 1978. Construction continued under the 1978 permit until the Petitioner received a Cease and Desist Order from the Corps of Engineers and a Notice of Violation and an Order for Corrective Action from the Department of Environmental Regulation. Factual details and legal conclusions concerning the enforcement action are summarized in the Recommended Order of Hearing Officer Benton entered May 20, 1983, which was adopted by the Secretary of DER on June 6, 1983, affirmed by the First District Court of Appeal in Lord vs. DER, supra, and officially recognized in this case. As a result of that enforcement action, the Petitioner was allowed to leave the vertical bulkhead around the trees at the northeast corner of her property but was required to remove a promontory that had been constructed by placing unconsolidated fill into the waters of the bayou. The Hearing Officer noted: "Respondent also contends that permit number 17-11736-IE authorized this deposition of fill west of the bulkhead out into the waters of Bayou Garcon. The permit clearly does no such thing. The permit contemplated bulk- heading and back-filling, not road building. The amount of unconsolidated fill exposed to wave action is at least 2 1/2 times what was authorized by the permit to be put behind bulkheads. . . Filling in the waters of the State requires a permit pursuant to Rule 17-4.28, Florida Administrative Code, and Respondent had no permit authorizing placement of the fill so as to build the promontory." See page 8 of 1983 Recommended Order. The 1978 permit expired on May 18, 1982. Before its expiration date, the Petitioner did not place significant amounts of fill in the subject juncus marsh behind the beach berm although the permit authorized her to. When the application for the current permit was filed, the promontory fill in the waters of the bayou had been removed in accordance with the enforcement proceeding and Final Order therein, and only the northeast corner of the property around the subject stand of pine trees remains bulkheaded. The Petitioner has not attempted, pursuant to the procedures set forth in Rule 17-4.022(8), Florida Administrative Code, to have the Department validate the jurisdictional determination which it made in connection with the 1978 permit application. The time has now expired for such a validation of the Department's 1978 determination of the landward extent of State waters, using the vegetative index adopted June 10, 1975. Such a validation would have had to have been made within six months of October 1, 1984, the effective date of the amendments to Chapter 403, commonly known as the "Warren S. Henderson Wetlands Act". Since that six month deadline mandated by the above-cited rule has long since passed, that prior 1978 jurisdictional determination, which resulted in the 1978 permit authorizing the filling of the marsh, can no longer have any material effect in this proceeding. The record establishes no representations or acts on the part of the Department or its representatives occurred during the life of that 1978 permit such that representations or actions of the Department during the life of that permit would have prevented the Petitioner from filling the marsh, landward of the berm or, in fact from completing the other work authorized by the permit, such as constructing the bulkhead across the front of the lots in accordance with the terms of the permit. The only thing interfering with the Petitioner's work on the project involved in the 1978 permit was the above-mentioned enforcement case, which stemmed from the Petitioner exceeding the authorization of that permit in the first place. No agency action or representation by any of its employees or agents prevented the Petitioner from filling the marsh area landward of the beach berm before the 1978 permit expired.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the application of Joyce L. Lord for a dredge and fill permit as described above, be denied. DONE and ENTERED this 29th day of July, 1988, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3033 Petitioner's Proposed Findings of Fact: 1 & 2. Accepted. 3-5. Accepted, but not dispositive of any material issue presented for the reasons enumerated in the body of the Recommended Order. Accepted in part, but rejected as to its material overall import as not being in accordance with the preponderant evidence of record. Accepted as to its chronology of events only; rejected otherwise as being not in accordance with the preponderant weight of the evidence. Rejected as contrary to the preponderant weight of the evidence and as immaterial to the disposition of the material issues presented. Rejected as to its material import and as contrary to the preponderant weight of the evidence. Rejected as contrary to the preponderant weight of the evidence. Rejected as subordinate to the Hearing Officers Findings of Fact on this subject matter. 12 & 13. Rejected as subordinate to the Hearing Officer's Findings of Fact on this subject matter and as not in accordance with the preponderant weight of the testimony and evidence. 14. Accepted, but not in and of itself dispositive of material issues presented. 15 & 16. Rejected as subordinate to the Hearing Officer's Findings of Fact on this subject matter and as not in accordance with the preponderant weight of the testimony and evidence. Respondent's Proposed Findings of Fact: 1-13. Accepted. COPIES FURNISHED: Gregory Paul Farrar, Esquire Paul Shimek, Jr., Esquire 311 North Spring Street Pensacola, Florida 32501 David A. Crowley, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issue for consideration in this hearing is whether the Respondent, W. B. Persico, should be issued a permit to construct a commercial marina as described in the Department's Intent to Issue, in Class III waters of the state in Charlotte County, Florida.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Burnt Store Isles Association, Inc., was an association of property owners whose property is located in the Burnt Store Isles subdivision located in Charlotte County, Florida. The applicant, W. B. Persico, is the owner of a piece of property located adjacent to the subdivision and applicant for a permit to construct a marina on his property. The Department of Environmental Regulation is the state agency responsible for the regulation and permitting of dredge and fill activities in the waters of the state. Mr. Persico's property is located on a dead end basin canal in Charlotte County, Florida. The canal is a Class III water but is not classified as an Outstanding Florida Water. On July 31, 1989, Mr. Persico applied to the Department for a permit to construct a 75 slip, 5660 square foot commercial marina on his property within this artificial, dead end basin. Because of objections by the Department to several aspects of the proposed project, on February 27, 1990, Mr. Persico submitted a modification proposal in which he eliminated the use of pressure treated lumber for pilings, substituting concrete pilings; incorporated boat lifts in each slip; reduced the number of slips from 75 to 65; committed himself to installing a sewage pump-out facility at the site; committed to creating an inter-tidal littoral shelf planted with mangroves; agreed to face the existing vertical bulkhead seawall in the basin with rip-rap; and incorporated a commitment to include, as a part of his rental contract, long term agreements prohibiting vessel maintenance and liveaboards on boats at the site, and insuring the perpetual use of boat lifts and pump out facilities provided. He now proposes to market the marina as a condominium ownership operation. The basin in which the Persico project is proposed is 136 feet across at the entrance, (the narrowest point), and 326 feet across at the widest point. The length of the basin is more than 900 feet. The docking structure to be created will have fingers extending no more than 39 feet into the water from the existing vertical seawall. It will have a 4 foot wide walkway parallel to and 10 feet from the existing seawall from which the arms will extend 25 feet into the basin. The basin which is the proposed location for the marina is at the end of the easternmost canal in the Burnt Store Isles subdivision. It is located just west of and parallel to US Route 41, and at the entrance point, joins a perimeter waterway which meanders approximately 1 mile seaward toward a lock which joins that waterway to Alligator Creek which is an Outstanding Florida Water. The waterway from the basin through the lock into Alligator Creek and thereafter to the Gulf provides the only navigable access for most vessels moored in the Burnt Store canals and which would be moored in the proposed marina between Charlotte Harbor and the Gulf of Mexico. The lock which joints the Burnt Store canals to Alligator Creek consists of two hydraulically operated swinging gates which are operated by a boater entering or exiting the canal system. This lock was constructed as a part of a 1973 agreement between Punta Gorda Isles, Inc., a developer, and the state to prevent the construction and runoff polluted waters of the canal from freely mingling with the Outstanding Florida Water in Alligator Creek. The lock is now maintained in an open position from November 15 to May 15 because boaters complained of the inconvenience of having to operate the lock system. Available evidence indicates that a complete passage through the lock, one way when closed, takes 15 minutes. No more than 24 boats can complete a round trip in a 12 hour boating day. When the lock is open there is no appreciable delay. The residential lots which abut the Burnt Store canals are still mostly vacant. The City of Punta Gorda has assumed the responsibility of conducting a 5 year water quality monitoring program which was previously agreed to by Punt Gorda Isles, Inc. when the lock was built. The 1973 agreement was amended in 1984 to permit the operation of the lock in a closed position for an entire year if water quality monitoring should indicate a degradation of water quality in either Alligator Creek of the Burnt Store Isles canals. This has not been necessary. The Petitioners fear that pollution generated by the addition of 65 additional boats moored at and operating from the proposed marina will cause the Department to implement that clause and order the lock to operate from a closed position year round. This does not mean that the lock would not be opened for boats, but that it would be closed when not being used. Petitioners contend that the increased usage would create an intolerable traffic jam at the lock which would, for the most part, make their use of the waterway to the Gulf intolerable. Mr. Persico is a former road and bridge contractor. Though he has never owned a marina, at one time he rehabilitated one in the Chicago area. He has owned the property in question here for four years and now plans to develop a condominium ownership marina. When he decided to do so, he hired Mr. James M. Stilwell, an environmental consultant, to prepare and submit to the Department the application for the required dredge and fill permit. Initial discussions between Mr. Stilwell and the Department dealt with many environmental issues. Mr. Stilwell pointed out that the water in the canal might already be stale and avenues were explored to mitigate that problem. They did not discuss the type of docks to be installed or the potential for destruction of mangrove stands along the seawall, but even though the original plan called for the docks to be placed against the seawall, it was to be done in such a way as not to disturb the mangroves. The modified plan removing the docks to a point 10 feet off from the wall will obviate any damage to the mangroves. Admittedly, the original submittal prepared by Mr. Stilwell contained factors which were considered unacceptable to the Department. These included construction of the finger piers with pressure treated wood. To eliminate possible pollution from leaching, the pressure treated wood was replaced with a floating dock using concrete pilings. Liveaboards, and the potential contamination from that activity, have been prohibited. The provision and required use of a sewage pump-out facility should prevent any escape of polluting sewage into the waters of the basin. The use of power hoists at each slip should prevent pollution from bottom paint leaching, and boat maintenance at the marina is to be prohibited. Fueling of the vessels will not be permitted at the site thereby obviating the potential of polluting fuel spills. The construction of a 10 foot wide littoral shelf, planted with mangroves, between the dock and the sea wall will provide increased water filtration and improve water quality. It would also help the development of the fish and wildlife population and would reduce the flushing time. Air released into the water from the use of the boat lifts should add oxygen and contribute to improved water quality. At the present time, the ambient water quality in the basin, as it pertains to dissolved oxygen, is probably below standards in the lower depths of the basin, and of the outside channels as well, due to poor light penetration. The channel depth is anywhere from 20 to 25 feet. The oxygen level at the bottom is undoubtedly depleted. Mangroves are currently located along 300 feet of the 1,300 foot seawall. Mr. Stilwell's proposal, and that approved by the Department, does not call for removal of the mangroves, but they would be built around or possibly trimmed. Mr. Stilwell is of the opinion that provision for trimming of the mangroves is inherent in the granting of the permit though such permission was not specifically sought. There is no evidence to contradict this thesis. Water quality issues were raised subsequent to the filing of the original application, and the facility as now planned is designed to minimize impacts on the environment as best as can be done. Water quality would be improved, or at worst not adversely affected, by the prohibitions against liveaboards and fueling, the provision of boat lifts and a pump station, and the prohibition against other structures beyond the dock and slips. Flushing of the water is important considering the fact that the dissolved oxygen content in the water is already low. However, Mr. Stilwell is satisfied, and it would so appear, that water quality would be improved by the implementation of the proposals as included in the conditions to the permit. Mr. Stilwell, admittedly, did no dissolved oxygen tests because they were not considered as a part of the permit application. If the Department requests them, they are done, but they were not requested in this case. It is clear that the original application did not address all the environmental concerns that Petitioners feel are pertinent. Nonetheless, those items already discussed were treated, as were turbidity control during construction. As to others of concern to Petitioners, many are included in the state standards and need not be specifically addressed in the application. The Department considered the application in light of the state standards, and by the use of the conditions appended to the Intent to Issue, provided for the water quality and other environmental standards to be sufficiently addressed and met. In his February 22, 1990 letter to the Department, Mr. Stilwell directly addressed the public interest concerns including the mangroves and the construction of the littoral shelf. The Department was satisfied that the public interest criteria were met, and considered the plans to be environmentally sound. They appear to be so. Petitioners have raised some question as to the effect of the 39 foot long dock fingers interfering with navigation within the basin. Mr. Stilwell does not feel that the facility would create this problem, even at the narrowest point, and it is so found. The width of the canal there is 136 feet. The portion of the slip designed to accommodate vessels is no more than 25 feet long, and presumably, vessels of a length much greater than that would not visit the basin. Even subtracting 39 feet from the 136 feet narrow point, 97 feet of turning space remains, and this is almost four times the length of the normal vessel anticipated in the basin. Mr. Stilwell did not address the subject of the lock as it relates to navigation, but primarily as it relates to the impact on water quality and the environment. Nonetheless, he is of the opinion, and there is no evidence to the contrary, that keeping the lock open on a year round basis would not trigger a change to the ongoing program under the agreement between the state and Punta Gorda Isles and result in the lock being closed year round. Mr. Shultz, the environmental specialist with the Department, reviewed the application here initially for file completeness, and when all required information was in, made a site visit. He evaluated the application and the attachments for permitability. For Class III waters, the project must meet water quality standards outlined in the Department's rules. Only one of the water quality criteria, that of dissolved oxygen, was shown to be not met. Since the water was already below that standard, the test to be applied then is whether the project will create some improvement." In Mr. Shultz' opinion, planting the mangroves, as proposed by the applicant, does this, as does the use of the lifts. The existing mangroves will not be impacted by the project as it is proposed, and the use of rip-rap, as proposed, will provide additional surface area for organisms which will improve the water quality. When first reviewed, the Department had some concern about on-water storage of boats. These concerns were treated by the use of hoists to hold the boats out of the water when not in use, and as a result, pollutants will not be introduced by bottom paint leaching and, presumably, bilge pumping. Standard conditions included in all Department Intents to Issue, require the project to comply with applicable state water quality standards or to give assurances that such general standards for surface waters and Class III waters will be met. In this case, Mr. Shultz is satisfied that the applicant has demonstrated that water quality standards will be maintained, and there was no evidence presented by the Petitioners to contradict this. Once water quality standards are shown to be protected, then the project is balanced against the public interest criteria outlined in the statute. Here, the requirement is for a showing that the project is not contra to the public interest. It does not, because of its nature, require a positive showing that the project is in the public interest. In his opinion this project, as modified, will not adversely affect the health, safety and welfare of the public, (it will have no environmental effect on other property). It will not adversely affect the conservation of fish or wildlife in their habitats, (the planting of mangroves will provide a net improvement to species habitat in the area). The project will not adversely affect navigation, flow of water, or erosion, (the width and length of the dock system appear to pose no threat to navigation in the basin and there would appear to be no obstruction or potential therefor as a result of this project; the project is within a no-wake zone; and the size of vessels is limited by the slip size). The permit will not adversely affect marine productivity, (there is currently very little productivity in the area now since waters below 0 depth of 6 feet are already low in oxygen, and the project would, at least minimally, improve this condition). The project is permanent and would not adversely affect historical or archeological resources in the area, (there are no objects or known resources in the area, but a standard condition in the permit requires immediate notification if known resources or objects are found). The project would not adversely affect the current condition and relative value of functions being performed in the area since the area is currently a real estate development which is far from completely built. Based on his consideration of these criteria, Mr. Shultz concludes that the project is not contrary to the public interest and this appears to be a valid conclusion. There appears to be no evidence of sufficient weight, presented by the Petitioners, either through direct evidence or through cross examination of the applicant and Department witnesses that would tend to diminish the credibility of Mr. Shultz' analysis. If there are subsequent violations, the Department has enforcement action available. There is, consistent with the multiple use zoning category applied to the area across the basin from the marina, the potential for up to an additional 100 docks to be constructed in the basin beyond those treated here. Nonetheless, the Department does not consider 165 boats to be a problem either in the basin or at the lock. This is not necessarily a supportable conclusion, however. Those 100 additional docks do not currently exist and their potential should not be considered in determining whether to approve the permit under consideration here. In opposition to the applicant, Mr. Konover and Mr. Forsyth both indicated that the addition of 65 more boats would seriously overtax the operation of the lock and make it difficult, if not hazardous, to operate boats in that area between the Burnt Store Isles subdivision and Alligator Creek. Both individuals agree, and it is so found, that in general, motor boats pollute to some degree the waters on which that are operated as a result of oil leaks from engine operation, leakage of bilge oil, escape of sewage, and leaching of copper paint and other solvents. In addition, manatee have been seen in the area, and the increase of boating operations could present some hazard to the manatee population. There is, however, no indication that a manatee population is permanently in residence there or is even there frequently. It is also accepted that boat wake has an adverse effect on sea walls, and all of these factors should have been and, in fact were, considered in the analysis of the permitability of the project. The concerns of Mr. Konover and Mr. Forsyth were echoed by Mr. Gunderson who, over 30 years operating boats, has seen what he considers to be a definite lack of concern for the environment by many boaters who pump bilges directly into the water, throw debris overboard, and use detergents to wash their boats at marinas. He is of the opinion that renters of slips are generally less concerned about water quality than those who live on the water, and take a more cavalier approach to water quality standards. These sentiments are also held by Mr. Young who, over the years, has owned marinas in Connecticut and has observed the approach of nonowning slip users to the water at their disposal. His concerns could be met by the strict enforcement of standards at the marina. Mr. Powell, a nurseryman who owns the lot across the basin from the site of the proposed marina, fishes from his lot and has observed the an increase of pollution in the canal. He routinely sees floating dead fish, palm leaves, cocoanuts, bottles, slicks and other debris, and though he owns a multifamily lot, would have a difficult time putting in many slips since his lot, at the entrance to the basin at the narrow point, would be across from the slips proposed by applicant and their proximity would, he feels, hinder his ability to build out into the basin as well.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Department of Environmental Regulation enter a Final Order issuing Permit No. 081679445, to W. B. Persico as modified and outlined in the Intent to Issue dated March 16, 1990. RECOMMENDED this 9 day of November, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9 day of November, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-3093 The following constitutes my specific rulings pursuant to S 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. & 2. Accepted and incorporated herein. 3. & 4. Accepted. Accepted but applicable only when the locks are closed. Accepted. - 9. Accepted and incorporated herein. Accepted. & 12. Accepted and incorporated in substance herein. 13. & 14. Accepted and incorporated herein. Accepted and incorporated herein. Rejected as contrary to the weight of the evidence. Accepted and incorporated herein. & 19. Accepted and incorporated herein. 20. & 21. Unsupported by convincing evidence of record. Accepted as valid when the lock is operated from a closed position. However, the evidence indicates that currently the lock is left open from November 15 to May 15 of each year and this does not cause delay. Accepted if the lock is operated from a closed position. Unsupported by convincing evidence of record. FOR THE APPLICANT: 1. - 6. Accepted and incorporated herein. 7. - 15. Accepted and incorporated herein. Accepted and incorporated herein. & 18. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Accepted. - 32. Accepted and incorporated herein. FOR THE DEPARTMENT: Accepted. and incorporated herein. - 4. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. & 9. Accepted and incorporated herein. 10. - 14. Accepted and incorporated herein. 15. - 18. Accepted and incorporated herein. COPIES FURNISHED: Joseph F. Lynch Burnt Store Isles Association, Inc. P.O. Box 956 Punta Gorda, Florida 33951-0956 Michael P. Haymans, Esquire P.O. Box 2159 Port Charlotte, Florida 33949 Cecile I. Ross, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact This application is a request for a consumptive use permit for two wells located in Pasco County, Florida, within the Pithlachascotee Basin. The subject wells are also located in that area wherein the Board of Governors of the Southwest Florida Water Management District declared a water shortage in Order No. 76-3D, Southwest Florida Water Management District. The application seeks an average daily withdrawal of 95,000 gallons with a maximum daily withdrawal of 360,000 gallons. The use of this water is for public supply involving effluent disposal by on-site percolation and ponding. This-use was existing prior to January 1, 1975 with am average daily withdrawal for 1974 of 74,000 gallons. The testimony presented by staff members of the Southwest Florida Water Management District establishes that the consumptive use for which a permit is sought will not violate any of the criteria set forth in Subsections 163- 2.11(2)(3) or (4), Florida Administrative Code, except that the use may significantly induce salt water encroachment. No evidence was presented showing that the sought for consumptive use will, in fact, significantly induce salt water encroachment. In the twelve month period ending October, 1975, applicant's highest average daily withdrawal was 81,000 gallons. This time frame corresponds to that time frame referred to in paragraph 1 of Water Shortage Order No. 76-3D, Southwest Florida Water Management District. In view of Water Shortage Order No. 76-3D, Southwest Florida Water Management District, the staff recommends granting of the permit for an average daily withdrawal of 81,000 gallons and a maximum daily withdrawal of four times that figure or 234,000 gallons. The staff further recommends imposition of the following conditions: That the permittee shall install totalizer flow meters of the propeller driven type on all withdrawal points covered by the permit with the exception of those wells which are currently ganged together using a single meter. That the permittee shall submit to the District a record of his pumpage for each meter, said pumpage to be read on a monthly basis and submitted quarterly to the District on April 15, July 15, October 15, and January 15 for each preceding calendar quarter. That all individual connections to the system be metered. That the permittee have water samples from all wells permitted analyzed for chloride on a monthly basis and results submitted to the District by April 15, July 15, October 15, and January 15 for each preceding calendar year.
The Issue This is a procurement protest. The ultimate issue is whether the Respondent’s award of the "Agreement for the Construction and Operation of a Seawater Desalination Plant and Water Purchase Agreement" ("WPA") to Intervenor, S & W Water, LLC ("S&W") on July 19, 1999, is contrary to Tampa Bay Water's (TBW’s) governing statutes, its rules or policies, or the proposal specifications, or is clearly erroneous, contrary to competition, arbitrary, or capricious. Additional issues presented for decision are: (1) whether Petitioner has standing to maintain this protest; and (2) whether, by participating in the procurement process, Petitioner has waived or is estopped from claiming irregularities arising out of that process.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that TBW enter a Final Order denying Petitioner's Formal Protest. Jurisdiction is reserved for consideration of S&W's request for a determination of improper purpose under Section 120.595(1), Florida Statutes, if such request is made by motion within 10 days from the issuance of this Recommended Order. DONE AND ENTERED this 25th day of October, 1999, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 1999. COPIES FURNISHED: Charles W. Pittman, Esquire 400 North Tampa Street Suite 1040 Tampa, Florida 33602 Richard A. Harrison, Esquire John W. Wilcox, Esquire Allen, Dell, Frank & Trinkle, P.A. Post Office Box 2111 Barnett Plaza, Suite 1240 101 E. Kennedy Boulevard Tampa, Florida 33601-2111 Donald D. Conn, General Counsel Tampa Bay Water 2535 Landmark Drive Suite 211 Clearwater, Florida 33761-3950 John H. Rains, III, Esquire Annis, Mitchell, Cockey, Edwards & Roehn, P.A. Post Office Box 3433 One Tampa City Center, Suite 2100 Tampa, Florida 33601
