The Issue The issues to be determined in this case are whether proposed Florida Administrative Code Rules 62-42.100, 62-42.200, 62-42.300, and a document incorporated by reference (“the Proposed Rules”) are invalid exercises of delegated legislative authority; whether the Department of Environmental Protection (“DEP”) complied with statutory requirements regarding preparation of a statement of estimated regulatory costs (“SERC”) for the Proposed Rules; and whether the approval by the Governing Board of the Suwannee River Water Management District (“SRWMD”) of a document entitled “Recovery Strategy: Lower Santa Fe River Basin” (“Recovery Strategy”) is invalid because it required rulemaking.
Findings Of Fact The Parties The Alliance is a Florida not-for-profit corporation with its principal place of business at 203 Northeast First Street, Gainesville, Florida. Its mission is to ensure the restoration, preservation, and protection for future generations of the ecosystems along the Ichetucknee River, including its associated springs. The Alliance has approximately 40 members. Seventeen members appeared at the final hearing and testified that they regularly use the Ichetucknee River and its associated priority springs for recreation, wildlife observation, and other purposes. Seventeen members is a substantial number of the total membership of the Alliance. Petitioner Still is a natural person who owns 117 acres of land in Bradford County. He uses the land primarily for timber production. He does not have a consumptive (water) use permit. He has used the Lower Santa Fe River and associated springs for recreation since 1979 and continues to visit the river and springs for this purpose. Petitioner FWF is a Florida not-for-profit corporation with its principal place of business at 2545 Blairstone Drive, Tallahassee, Florida. The mission of FWF includes the preservation, management, and improvement of Florida’s water resources and wildlife habitat. In the parties’ Pre-Hearing Stipulation, FWF identified Manley Fuller, its President, as its witness for organizational standing. It also listed “standing witnesses as needed,” but did not name them. At his deposition, Mr. Fuller stated that he did not know how many FWF members use the MFL water bodies. At the beginning of the final hearing, FWF made an oral proffer that it was prepared to call “10 members who are using the water bodies.” Later, FWF stated that some members were unwilling or unable to come to Tallahassee, but suggested that 10 or 15 might (now) be talked into coming to the final hearing or testifying by video. FWF also proffered a membership list, showing the number of members by county. It shows that FWF has a total of 11,788 members. In the six counties in the vicinity of the MFL water bodies (Alachua, Bradford, Columbia, Gilchrist, Suwannee, and Union) there are 457 FWF members. Ten, 15, or 20 members is not a substantial number of FWF’s 11,788 total members, nor is it a substantial number of its 457 members who live in the vicinity of the MFL waterbodies. Respondent DEP is a state agency with powers and duties under chapter 373, Florida Statutes, including the power and duty under section 373.042(1), which it shares with the water management districts, to establish minimum flows for surface watercourses and minimum levels for groundwater (“MFLs”) and recovery strategies when MFLs will not be achieved. Respondent/Intervenor SRWMD is a regional water management district with powers and duties under chapter 373, including powers and duties related to MFLs. The MFL waterbodies are located within SRWMD. Intervenor SJRWMD is the water management district adjacent to SRWMD. A portion of SJRWMD is included within the planning area created for the MFL waterbodies. Intervenor NFUCG is a regional trade organization representing interests of public water supply utilities in North Florida that hold consumptive use permits and are subject to the Proposed Rules. Intervenors CCUA and JEA are two members of NFUCG. Intervenors Alachua County, Gilchrist County, Suwannee County, Bradford County, and Columbia County are political subdivisions of the State in geographic proximity to the MFL water bodies. These Counties have the duty to plan for and protect the MFL water bodies as part of their local government comprehensive planning responsibilities under chapter 163, Florida Statutes. Minimum Flows and Recovery Strategies The water management districts and the DEP are required to establish minimum flows for surface water courses. § 373.042(1), Fla. Stat. Minimum flows are “the limit at which further withdrawals would be significantly harmful to the water resources or ecology of the area.” § 373.042(1)(a), Fla. Stat. If the existing flow in a water body is below its established minimum flow, DEP or the district is required to develop a “recovery strategy” designed to “[a]chieve recovery to the established minimum flow or level as soon as practicable.” § 373.0421(2), Fla. Stat. MFLs and recovery strategies are required to be included in a water management district’s regional water supply plan. § 373.709(2)(c) and (g), Fla. Stat. Water management districts must develop regional water supply plans in regions where they determine existing sources of water are not adequate to supply water for all existing and future users and to sustain water resources and related natural systems. § 373.709(1), Fla. Stat. SRWMD does not have a regional water supply plan. It is working on a draft plan that is expected to be completed in late 2015. The MFL Water Bodies The Lower Santa Fe River runs for approximately 30 miles from Santa Fe River Rise Spring to its confluence with the Suwannee River. The Lower Santa Fe is fed primarily by groundwater discharge from the Upper Floridan aquifer including the baseflow provided by several major springs. The Lower Santa Fe River system, including its tributary, the Ichetucknee River (below State Road 27), is classified as an Outstanding Florida Water, a designation conferred on waters “with exceptional recreational or ecological significance.” See Fla. Admin. Code R. 62-302.700(3). The Ichetucknee River runs for six miles from the Head Spring to its confluence with the Lower Santa Fe. Its flow is derived almost entirely from springflow. The ecological, recreational, and economic values of the Santa Fe and Ichetucknee Rivers are widely recognized. Both rivers flow through lands preserved for public use as part of the State Park System. SRWMD published a Water Supply Assessment in 2010 to determine whether water demands could be met for the 2010-2030 planning period without adversely affecting natural resources. The North Florida Groundwater Flow Model was used to evaluate groundwater withdrawals and their effect on aquifer levels and the flows in springs and rivers. The 2010 assessment concluded that groundwater levels of the Upper Floridan Aquifer in the eastern and northeastern portions of the District were in decline. The District’s analysis of river and streamflows also found declining trends. It was concluded that existing water sources would not be able to meet projected water demands over the planning period. As a result, the Lower Santa Fe River Basin (including the Ichetucknee River) was designated as a water supply planning region and SRWMD began to develop minimum flows for these water bodies. Because groundwater withdrawals within the adjacent SJRWMD were also affecting the MFL waterbodies1/, DEP, SRWMD, and SJRWMD entered into an interagency agreement in 2011 to work together on water supply issues and the development of a joint regional groundwater model. Development of the Minimum Flows The procedural difficulties faced in establishing minimum flows affected by water uses in two water management districts eventually lead to the Legislature’s creation of section 373.042(4) in 2013, which authorizes DEP to adopt relevant rules which can be applied by the water management districts without the need for their own rulemaking. In June 2013, SRWMD requested that DEP adopt minimum flows for the MFL waterbodies pursuant to the new law. A gage2/ for the Lower Santa Fe River near Fort White, and a gage for the Ichetucknee River on US 27 were selected for establishment of the respective minimum flows. The minimum flows were determined by first establishing a hydrologic baseline condition at the two gages. Then, SRWMD determined a departure from the baseline that would cause significant harm to the water resources and ecology of the area. The minimum flows are expressed as stage duration curves rather than a single number, in order to account for the changes in flow that occur naturally due to seasonal, climatic, and other factors affecting rainfall. Once the minimum flows were determined, SRWMD evaluated whether they are being met. It concluded that the minimum flows are not being met. Therefore, in accordance with section 373.0421(2), a recovery strategy had to be prepared and implemented. The Recovery Strategy A recovery strategy is a plan for achieving a return to adopted MFLs and will generally include plans for developing new water supplies and implementing conservation and efficiency measures. See § 373.0421(2), Fla. Stat. The practice of the water management districts has been to also adopt regulatory measures that are used in the review of consumptive use permits as part of a recovery strategy. See, e.g., Fla. Admin. Code R. 40D-80.074. That practice was followed for the MFL water bodies. The Recovery Strategy includes planning, water conservation, water supply development, and water resource development components. These components comprise the non-regulatory portion of the Recovery Strategy. Section 6.0 of the Recovery Strategy, entitled “Supplemental Regulatory Measures,” is the regulatory portion and is incorporated by reference in proposed rule 62-42.300(1)(d). The Recovery Strategy is to be implemented in two phases and the objectives of each phase are described in Table 4-1 of the Recovery Strategy. Phase I includes adoption of supplemental regulatory measures, work with user groups to implement water conservation measures, completion of an improved regional groundwater model, and identification and investigation of water supply projects. In Phase II of the Recovery Strategy, DEP plans to use the new regional model to develop long-term regulatory measures to address regional impacts to the MFLs water bodies. In addition, SRWMD and SJRWMD would develop and implement additional water resource and supply projects. The Proposed Rules The Proposed Rules would create three sections in a new chapter 62-42 of the Florida Administrative Code. Rules 62- and 62-42.200 set forth the scope and definitions: 62-42.100 Scope The purpose of this chapter is to set forth Department-adopted minimum flows and levels (MFLS) and the regulatory provisions of any required recovery or prevention strategy as provided in Section 373.042(4), F.S. The Department recognizes that recovery and prevention strategies may contain both regulatory and non-regulatory provisions. The non-regulatory provisions are not included in this rule, and will be included in the applicable regional water supply plans approved by the appropriate districts pursuant to Section 373.0421(2) and Section 373.709, F.S. [Rulemaking authority and law implemented omitted.] 62-42.200 Definitions When used in this chapter, the following words shall have the indicated meanings unless the rule indicates otherwise: Flow Duration Curve means a plot of magnitude of flow versus percent of time the magnitude of flow is equaled or exceeded. Flow Duration Frequency means the percentage of time that a given flow is equaled or exceeded. [Rulemaking authority and law implemented omitted.] Rule 62-42.300 is where the proposed minimum flows are set forth. The minimum flows for the Lower Santa Fe River are established in rule 62-42.300(1)(a); the minimum flows for the Ichetucknee River are established in rule 62-42.300(1)(b); and the minimum flows for 16 priority springs are established in rule 62-42.300(1)(c). The minimum flows for the Santa Fe and Ichetucknee Rivers are expressed as water flow in cubic feet per second (“cfs”) at various points on a flow duration curve. The minimum flows for ten named springs associated with the Santa Fe River and six named springs associated with the Ichetucknee River are set forth as a “percent reduction from the median baseline flow contribution of the spring to the flow” at a particular river gage. This approach, which ties spring flow to river flow, was used by DEP because there is minimal flow data for the springs. Rule 62-42.300(1)(d) adopts by reference “Supplemental Regulatory Measures,” which is Section 6.0 of the Recovery Strategy. Rule 62-42.300(1)(e) states that DEP, in coordination with SRWMD and SJRWMD, shall reevaluate these minimum flows after completion of the North Florida Southeast Georgia Regional Groundwater Flow Model, which is currently under development. The rule also states that DEP will “strike” rules 62-42.300(1)(a) through (d) and adopt new rules no later than three years after completion of the final peer review report regarding the new groundwater model, or by December 31, 2019, whichever date is earlier. The Supplemental Regulatory Measures adopted by reference in rule 62-42.300(1)(d) are intended to provide additional criteria for review of consumptive use permit applications during Phase I. These measures would be applied to water uses within the North Florida Regional Water Supply Planning Area. For the purposes of the issues raised in these consolidated cases, it is necessary to discuss three categories of permit applications and how they would be treated under the Supplemental Regulatory Measures in Phase I: (1) A new permit application that shows a “potential impact” to the MFL water bodies must eliminate or offset the potential impact; (2) An application to renew a permit, which does not seek to increase the amount of water used, would be renewed for five years no matter what impact it is having on the MFL water bodies; however, if the impact is eliminated or offset, the renewal would not be limited to five years; and (3) An application to renew a permit which seeks an increased quantity of water would have to eliminate or offset the potential impact to the MFL water bodies associated only with the increase. This category of permits is limited to a five-year renewal unless the existing impacts are also eliminated or offset. See § 6.5(a)-(d) of the Recovery Strategy. Section 6.5(e) states that existing permits that do not expire during Phase I are considered consistent with the Recovery Strategy and are not subject to modification during the term of their permits. Many permits are issued for a 20-year period, so Phase I would not capture all existing permits because they would not all expire during Phase I.3/ DEP stated that existing permits may be affected by the regulatory measures DEP plans to adopt for Phase II. Section 6.5(f) of the Supplemental Regulatory Measures states that permittees are not responsible for impacts to the MFL water bodies caused by water users in Georgia, or for more than the permittee’s “proportionate share of impacts.” The record evidence established that the effect of Georgia water users on the MFL water bodies is small. Section 6.6(b) requires permits for agricultural use in the counties surrounding the MFL water bodies to include a condition requiring participation in the Mobile Irrigation Lab (MIL) program. The purpose of SRWMD’s MIL program is to improve the efficiency of irrigation systems. SRWMD provides cost- sharing in this program. Whether DEP Must Adopt the Entire Recovery Strategy by Rule Petitioners contend that proposed rules 62-42.100(1) and (2) enlarge, modify, or contravene sections 373.042(4) and 373.0421(2) because these statutes require DEP to adopt all of a recovery strategy by rule, not just the regulatory portion of a recovery strategy. Respondents contend that it was consistent with the law for DEP to adopt only the regulatory portion of the Recovery Strategy by rule and have SRWMD approve the non- regulatory portion and implement it through a regional water supply plan. It has been the practice of the water management districts to adopt by rule only the regulatory portion of a recovery strategy and to implement the non-regulatory portion as a component of their regional water supply plans. This is primarily a legal issue and is addressed in the Conclusions of Law where it is concluded that DEP is not required to adopt the entire Recovery Strategy by rule. Whether SRWMD Must Adopt the Recovery Strategy By Rule Petitioner Still challenged SRWMD’s approval of the Recovery Strategy as violating the rulemaking requirements of section 120.54. However, Petitioner Still presented no evidence in support of his claim that the Recovery Strategy contains statements that meet the definition of a rule, but were not adopted as rules. Whether the Non-Regulatory Portion of the Recovery Strategy Will Prevent Recovery The Alliance claims that there are flaws in the non- regulatory portion of the Recovery Strategy that was approved by SRWMD, primarily related to the estimate of flow deficits in the MFL water bodies and the corresponding amount of water that must be returned to the system to achieve the minimum flows. There is unrefuted record evidence indicating that SRWMD did not account for consumptive use permits issued in the last three or four years. Therefore, the Recovery Strategy probably underestimates the flow deficits in the Lower Santa Fe and Ichetucknee Rivers and the amount of water needed to achieve the minimum flows.4/ However, as explained in the Conclusions of Law, the Alliance cannot challenge the non-regulatory portion of the Recovery Strategy in this proceeding. The Recovery Strategy, including the non-regulatory portion approved by SRWMD, is in Phase I. SRWMD can revise the Recovery Strategy at any time, and in Phase II can do so with the improved analysis made possible with the new regional model. As explained in the Conclusions of Law, the non-regulatory portion does not have to achieve recovery in Phase I. Whether the Minimum Flows are Based on the Best Information Available Petitioner Still contends that the minimum flows are not based on the best information available as required by section 373.042(1)(b). He claims that the wrong method was used to estimate streamflow, the modeling was based on a false assumption about the relationship between groundwater levels and river flows, the relationship between withdrawals and flows was not properly accounted for, withdrawals and other anthropogenic impacts were not properly distinguished, tailwater effects were not properly accounted for, and the wrong period of record was used. Petitioner Still’s arguments in this respect are based largely on his own opinions about the quality and significance of the technical data that was used and how it affects the modeling results used in establishing the minimum flows. Petitioner Still does not have the requisite expertise to express these opinions and he did not get expert witnesses at the final hearing to agree with his claims. Petitioner Still does not have an expertise in modeling to express an opinion about the ability of the model to use particular data or how the model accounts for various surface and groundwater phenomena. Petitioner Still failed to prove that the minimum flows are not based on the best available information. Whether the Proposed Rules Are Vague Petitioner Still contends the Proposed Rules are invalid because they use terms that are vague. Some of the terms which Petitioner Still objects to are the same or similar to terms commonly used in other environmental regulations, such as “best available information,” “impact,” “offset,” and “eliminate.” The term “potential impact” is not materially different than the term “impact.” The term “best available modeling tools” is not vague. It reflects the recognition that, like best available information, hydrologic models and technical information are continually being created and updated. Petitioner Still contends that the definitions of “Flow Duration Curve” and “Flow Duration Frequency” in proposed rules 62-42.200(1) and (2), respectively, are vague because they do not state whether “synthetic” data may be used in the production of the flow duration curve, or that they are based on a specific period of record. Synthetic data are numeric inputs used to account for missing data and are created by extrapolating from existing data. As an example, they can be used to satisfy a model’s need to have a water flow entry for every month in a multi-year period being analyzed when there is no actual data available for some of the months. The use of synthetic data is a regular and accepted practice in modeling and does not have to be mentioned in the rule. Flow duration curves and flow duration frequencies are calculated from data covering specific periods of record. Although the definitions of these two terms in proposed rule 62-42.200 could contain more information than is provided, the proposed definitions are not inaccurate. They are not vague. Petitioner Still contends that proposed rule 62-42.300(1)(a) is vague because it establishes the minimum flows for the Santa Fe River at a location without precisely identifying the location. The record shows that the reference in proposed rule 62-42.300(1)(a) to “the Santa Fe River near Ft. White, FL” is the actual name of the United States Geological Survey flow gage that has been in use for many years. Furthermore, proposed rule 62-42.300(1)(c), which establishes the minimum flows for the priority springs, refers to “the respective river gages listed in paragraphs 62-42.300(1)(a) and (b).” Therefore, it is made clear that the reference to “the Santa Fe River near Ft. White, FL” in proposed rule 62-42.300(1)(a) is a reference to a river gage. The rule is not vague. Petitioner Still asserts that the minimum flows in proposed 62-42.300(1) are vague because they do not identify the period of record that was used in deriving the flow duration curves which are used in the rule. He compared the wording in the proposed rule to SRWMD’s existing rule 40B-8.061(1), which identifies the technical report from which the flow duration curve in that rule was derived. A general description of flow duration curves is found in “Minimum Flows and Levels for the Lower Santa Fe and Ichetucknee River and Priority Springs” dated November 22, 2013 (“MFL Technical Document”), at page 3-6: They show the percent of time specified discharges were equaled or exceeded for a continuous record in a given period. For example, during the period 1932 to 2010, the daily mean flow of the Santa Fe River near Fort White (Figure 3-2) was at least 767 cfs, 90 percent of the time. The curves are influenced by the period of record used in their creation, but for comparison purposes between different scenarios over a fixed time period they are extremely useful. [Emphasis added.] However, proposed rule 62-42.300(1) does not give the period of record for the flow duration curves that will be used to determine compliance with the minimum flows for the Lower Santa Fe and Ichetucknee Rivers. Respondents argued that identifying the period of record is unnecessary because anyone interested in knowing the period of record or anything else pertaining to how the flow duration curves were produced could refer to the MFL Technical Document. This is not a situation where a specific number and unit, such as 100 cfs, has been established as a criterion based on technical analyses that can be found in documents. In such a case, the technical documents are not needed to determine compliance with the criterion; they simply explain why the criterion was selected. In the case of a flow duration curve, however, the period of record for the data to be used must be known to determine compliance. For example, proposed rule 62-42.300(1)(a)1. would establish the following criterion: “3,101 cubic feet per second (cfs) for a flow duration frequency of five percent.” Five percent of what? Five percent of what data set? Data from what time period? Must the same synthetic data be used? The rule does not inform persons subject to the rule what data SRWMD will use to determine compliance. They would not know how to calculate flow duration frequencies without reviewing the MFL Technical Document. Because the minimum flows are not completely identified in the rule, they are vague. Whether a Minimum Flow Should be Established for Each Priority Spring Petitioner Still contends that the Proposed Rules are invalid because minimum flows are not established for each priority spring, which causes them to be unprotected. He claims that each spring needs its own minimum flow “that takes into account the surface and ground water inputs to its flow.” DEP and SRWMD presented evidence that establishing minimum flows for each spring was impracticable because there were insufficient data for the springs. Petitioner Still did not refute this evidence. Whether the Proposed Rules Allow Further Degradation of the MFL Water Bodies The Alliance contends that the Proposed Rules must reduce permitted withdrawals in Phase I and must require monitoring of water use by agricultural water users, but it did not present evidence that these alternative regulatory measures are practicable in SRWMD in Phase I. The Alliance did not show there are permitting mechanisms that have been used by other water management districts as part of the first phase of a recovery strategy that are practicable for use in SRWMD and would be more effective. The only evidence presented on the subject of what regulatory measures other water management districts have adopted as part of a recovery strategy pertained to the Southwest Florida Water Management District (“SWFWMD”). That evidence showed that SWFWMD took a similar approach of allowing existing permitted uses to continue their water withdrawals while new water supplies and conservation mechanisms were developed. The Alliance contends that the Supplemental Regulatory Measures do not prevent further degradation because there are projected to be numerous, new agricultural water uses in Phase I. However, under section 6.5(b), new water uses will not be allowed to adversely impact the MFL water bodies. The Alliance makes a similar argument regarding existing agricultural water users who will request an increase in water. Under section 6.5(c), increases in water use will not be allowed to adversely impact the MFL water bodies. Whether the SERC and Revised SERC are Good Faith Estimates and Whether the Proposed Rules Impose the Lowest Cost Regulatory Alternatives Petitioner Still failed to meet his burden under section 120.56(2) of going forward with evidence to support his allegations that DEP’s original SERC or the revised SERC were not good faith estimates of regulatory costs associated with the Proposed Rules. The record evidence shows they are good faith estimates. He also failed to meet his burden under section 120.56(2) of going forward with evidence to support his allegations that the objectives of the law being implemented could be substantially accomplished by a less costly regulatory alternative.
The Issue The issue is whether Hernando County's application for an environmental resource permit authorizing the construction of a new surface water management system to serve a 7.85 acre drainage system improvement three miles southeast of Brooksville, Florida, should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Petitioners, Richard J. Silvani, Dick W. Thompson, James E. and Marilyn Bates, Joyce Menzie, James M. Gibson, Claudia C. Munsell, Mr. and Mrs. Phillip E. Durst, Donald R. Sosnoski, Mr. and Mrs. Robert L. Nelson, and Mr. and Mrs. Richard Ladow (Petitioners), are property owners in central Hernando County, Florida. Respondent, Southwest Florida Water Managment District (District), is the state agency charged with the responsibility of issuing Environmental Resource Permits (ERP) within its jurisdictional boundaries. Respondent, Hernando County (County), is a local government seeking the issuance of a permit for the purpose of alleviating drainage and flooding problems in a subdivision known as High Point Gardens in the central part of the County. On June 11, 1997, the County filed an application with the District seeking authorization to construct a low earthen berm to help control flooding in High Point Gardens, an eighty- five unit residential subdivision. On September 29, 1997, the District gave notice of its intention to issue ERP No. 449342.01 authorizing the "construction of a new surface water management system to serve a 7.85 acre drainage system improvement known as the Hernando County - High Point Gardens Drainage Improvements." The project is located off Sun Hill Lane, three miles southeast of Brooksville, Florida, in central Hernando County. On an undisclosed date, but in a timely fashion, Petitioners filed their Petition for Informal Hearing challenging the issuance of the permit. As grounds, Petitioners alleged that the permit application contained "possible miscalculations of design" which would "alter the natural water flow route"; "adversely affect several acres of natural wetlands by changing hydrology of surface area"; "adversely affect adjacent uplands by innundating forest areas never before flooded by heavy rainfall"; "not guarantee 100% flood protection to the few affected homes"; and "create flood problems to adjacent homes and property by diverting stormwater from natural flow (north) to area east of 'proposed' retention area." The petition further alleged that the "'proposed' area should not be normal recepient [sic] of excess water from Cedar Falls subdivision" and that "all affected properties are not owned or easements acquired by Hernando County for surface water storage." The filing of the petition prompted the initiation of this proceeding. The Permit The High Point Gardens subdivision, which lies within the Bystre Lake Basin, is a "relatively old subdivision," having been built around the 1970's. There is a low area in the middle of the subdivision, and it has "[s]everal sinks with a natural drainage within the area." Because the thirty-square-mile basin is a closed drainage basin, with no natural outflows, "significant" flooding problems have been present throughout the basin since at least the 1980's. In an effort to resolve flooding problems within the basin, the County and District jointly sanctioned a study by a consulting firm, Dames and Moore, to provide suggested alternative actions to correct the problem. The firm's first interim report was rendered on August 5, 1988, and a final report known as the Bystre Lake Stormwater Management Master Plan was rendered in August 1989. Among other things, the consultant's report recommended that a berm be constructed to relieve the flooding in the High Point Gardens' area. Acting on the report, the County obtained a construction permit from the District in August 1991 in accordance with the consultant's recommendation, but construction on the project was not commenced prior to the permit expiring in 1994. Although the consultant's report was the genesis for the first permit, the plans and specifications for the new berm have been modified by engineers after further study and review. It is noted that the total land area of the project will be less than 100 acres. The High Point Gardens subdivision lies within sub-basin 304 of the basin. Under the new proposal, water which now comes into sub-basins 304 and 406 from sub-basins 305 and 306 will be stored in those latter sub-basins. The requested permit would authorize the County to construct a low earthen berm along the western side of sub-basin 406 and the southern boundary of sub- basin 304 to help control flooding in the subdivision. The proposed berm will range from one to five feet in height and extend some 3,250 feet, or approximately six-tenths of a mile. It will range from eight to ten feet in width with a side slope of 4 to 1. The berm will impound water upstream of the berm to an elevation of 90.5 NGVD, which is 1.5 feet higher than the water would rise in the area under natural conditions. The water will be stored in two natural ponds which are now located in the project area. Once the water reaches an elevation of 90.5 NGVD, which will occur only during an event exceeding a 25-year storm event, three overflow structures will become operative and are designed to mimic the natural water flows of the area. After the berm is constructed, all basins "downstream" of the berm, including sub-basins 304, 405, and 406, will have "significantly lower flood elevations than the 10, 25 and 100- year storm event." That is to say, existing flooding to the north and east of the proposed berm will be lessened. To the extent that additional impoundment of water behind the berm will occur, or flooding beyond the berm may occur during a 100-year storm event, the County will acquire easements from local property owners to store the additional water. Until the aquisition of land occurs, construction cannot begin. There is one already disturbed wetland area near the proposed construction area. No mitigation is required, however, since the impact will be temporary and the area is expected to naturally revegetate itself. There will be no adverse impacts to fish, wildlife, or adjacent wetlands. Neither will the project create any other environmental concerns. While there will be some impact to upland trees caused by the impounded water, under existing District rules, that impact cannot be used as a basis to deny the permit. Based on generally accepted engineering principles, the project is capable of being effectively performed and can function as proposed. Also, the project can be effectively operated and maintained. The County has the resources to undertake the project in accordance with the terms and conditions of the permit. The greater weight of credible and persuasive evidence supports a finding that the County has given reasonable assurances that all applicable criteria for the issuance of a permit have been met. Petitioners' Objections At hearing, Petitioners contended that the overflow structures for the berm would alter the natural flow of water, and increase the flow of water to the east of the proposed project, where several Petitioners reside. As previously noted, however, the more credible evidence shows that the project will not increase the natural flow of water to the east of the berm. More specifically, expert testimony demonstrated that the regular flow through each weir in the post-development condition will not be adversely greater than what occurred during the pre- development condition. Petitioners also contended that the wetlands will be negatively impacted by the project. Contrary expert testimony by witness Defoe established, however, that there will be no permanent adverse impacts to wetlands, fish, or wildlife if the permit is approved. Petitioners next contended that the process was flawed because very few on-site inspections of the project area were made by District and County personnel, especially during the rainy season, before the application was preliminarily approved. There were, however, on-site inspections by District and County staff and consultants, and it was not shown that the lack of additional inspections affected the validity of their studies. A further contention was made at hearing that the information supporting the application was insufficient and that more study, including soil boring tests, should have been made. As to additional soil boring tests, the evidence shows that it is not a common engineering practice to perform soil testing throughout the entire area that will be submerged. Therefore, the existing tests were adequate to support the engineering assumptions. Further, even if there were some infirmities in the data and assumptions used and made in the 1989 Dames and Moore report, as alleged by Petitioners, the errors or omissions were minor, they were subject to later refinement by professional engineers, and they did not materially affect the overall validity of the current application. Finally, the application file contains uncontradicted technical information supporting the issuance of the permit. Petitioners' other concerns, while sincere and well- intended, are not relevant to the permitting process. For example, a concern that the construction of a berm will decrease nearby property values, even if true, is not a consideration in the permitting process. Similarly, Petitioners' valid concern that some nearby upland trees will be damaged if water levels rise for a prolonged period of time is not a basis under existing District rules to deny the permit. At the same time, whether the project is cost-effective and the best alternative for alleviating flooding conditions in the area are political decisions for the County, and thus they are not in issue in this proceeding. Finally, Petitioners have pointed out that the County has not completed acquisition of the necessary easements for the project, and that until this is done, a permit should not issue. However, the District has specifically provided as a condition precedent to any construction work that the County finalize ownership or control for all property where water levels will be raised by the project.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Southwest Florida Water Management District enter a final order granting Hernando County's application for Standard General Environmental Resource Permit No. 449342.01. DONE AND ENTERED this 8th day of June, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1998. COPIES FURNISHED: E. D. "Sonny" Vergara, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Chester Bradshaw 18520 Bradshaw Road Dade City, Florida 33523 Richard L. Silvani 24419 Lanark Road Brooksville, Florida 34601 Margaret M. Lytle, Esquire 2379 Broad Street Brooksville, Florida 34609-6899 Robert Bruce Snow, Esquire 20 North Main Street, Room 462 Brooksville, Florida 34601
The Issue The issues to be determined in this proceeding are: whether the challengers have standing; and (2) whether Proposed Rule 40E-8.221(2) is an invalid exercise of delegated legislative authority.
Findings Of Fact Based on the parties' stipulations and the evidence adduced at the final hearing, the following findings of fact are made: The Parties The District is a government entity existing and operating pursuant to chapter 373, Florida Statutes, as a multi- purpose water management district. The District has the power and duty to adopt MFLs consistent with the provisions of part I of chapter 373. Sanibel is a barrier island sanctuary in Lee County and a duly-formed municipality with a population of more than 6,000. Sanibel is situated at the mouth of the Caloosahatchee River, within the Caloosahatchee's greater estuarine area. Sanibel is known primarily for its natural beauty, including clear blue waters, shell beaches, world-class sport fisheries, and wildlife refuges. That is why tourists come from around the globe to visit Sanibel, and why Sanibel's residents move and remain there. Sanibel actively participated in the rulemaking process for the Proposed Rule from its inception. Sanibel submitted two technical comment letters to the District during the development of the Proposed Rule. Sanibel's natural resources director, James Evans, attended numerous public and technical meetings associated with the development of the Proposed Rule, speaking on the record at each of the public meetings prior to the adoption hearing by the District's governing board. The Town, located on Estero Island in Lee County, is also a barrier island community and duly-formed municipality with a population of more than 6,000. The Town is situated just south of the mouth of the Caloosahatchee River and on the southeastern edge of the Caloosahatchee River's greater estuarine area. The Town is known primarily for its natural beauty, including clear blue waters, shell beaches, world-class sport fisheries, and wildlife refuges. Cape Coral is a duly-formed municipality in Lee County and is the largest city between Tampa and Miami, with a population in excess of 150,000. Cape Coral is bordered on the south by the Caloosahatchee River and has over 400 miles of navigable canals and waterways, all of which are within the Caloosahatchee River's greater estuarine area. In addition, Cape Coral has an assigned load reduction allocation under the Basin Management Action Plan (BMAP) for the Caloosahatchee River Estuary (CRE) due to it being designated as impaired for dissolved oxygen and nutrients. Maintaining sufficient flow in the Caloosahatchee River would have a direct impact on Cape Coral's ability to meet its assigned load reduction allocation. In addition to living on or near the water, a substantial number of the residents of Sanibel, Cape Coral, and the Town engage in water-based recreational activities such as swimming, fishing, boating, kayaking, paddle boarding, bird watching, and nature observation in and around the Caloosahatchee River's greater estuarine area. Fort Myers is a duly-formed municipality in Lee County and has a population of approximately 80,000. Fort Myers is bordered by the CRE throughout its entire jurisdictional boundary. Fort Myers owns and maintains a yacht basin (Ft. Myers Yacht Basin), which includes a mooring field and an anchorage field in the Caloosahatchee River. Fort Myers presented testimony that commercial crabbing and recreational fishing have declined and that it has suffered economic harm due to water quality issues. Fort Myers owns the submerged land in the Caloosahatchee River from Marker 39 to Marker 58, and islands in the river. One such island will be used as a park for recreational activities such as canoeing, kayaking, and hiking for visitors to enjoy the Caloosahatchee River. Fort Myers also owns and operates piers and a public boat ramp within the Caloosahatchee River. Fort Myers' dock master has observed declines in seagrasses in the Caloosahatchee River during his 19-year career working at the Ft. Myers Yacht Basin. Fort Myers has adopted a Harbor Management Plan for the management of its mooring and anchorage fields in the Caloosahatchee River. Fort Myers has also been assigned a load reduction allocation under the BMAP for the CRE, and is responsible for a certain amount of pollution reduction over time. Bonita Springs is a municipality of more than 50,000 in Lee County. The borders of Bonita Springs include portions of Estero Bay, which, along with San Carlos Bay and the Caloosahatchee River, is part of the greater Lower Charlotte Harbor Estuary. Bonita Springs includes wildlife refuges, such as the Estero Bay Aquatic Preserve and Lovers Key State Park and Recreation Area. While Bonita Springs' strategic priorities include environmental protection and water quality, it does not have environmental staff or test water quality. Bonita Springs participates in Estero Bay Management and the Charlotte Harbor National Estuary Program (CHNEP). Bonita Springs provides financial assistance to the Caloosahatchee Citizen Sea Grass Gardening Project. Concerns regarding harm to the CRE and tape grasses are shared by a significant number of residents in Bonita Springs and Estero, including injury to the quality of life and recreational uses such as swimming, boating, and kayaking in the waterways. Estero is a municipality of more than 30,000 in Lee County. Estero borders the eastern portion of Estero Bay. Estero includes wildlife refuges, such as Estero Bay Aquatic Preserve and Koreshan State Park. While Estero has environmental policies, it does not have environmental staff or test water quality. Estero makes financial contributions to CHNEP. Estero is concerned that the Proposed Rule will affect its water quality, which could affect its residents' quality of life. Estero believes it could be harmed by poor water quality because its residents are portable retirees who can move away, or tourists who can choose not to visit. Captiva Island is situated at the mouth of the Caloosahatchee River, within the Caloosahatchee's greater estuarine area. CCP is a Florida not-for-profit corporation representing property owners, businesses, and the community of Captiva Island. Captiva Island is part of unincorporated Lee County and is located north of Sanibel. CCP has 200 financial contributors comprised of property owners, businesses, and residents on Captiva Island. CCP's mission includes protection of clean off-shore water, diverse and healthy marine life, and robust native vegetation along with the protection of mangrove fringe and water quality. CCP works with Lee County on provisions of the County's comprehensive plan, which include the quality of adjacent waters. CCP relied on the expertise of James Evans, the director of natural resources for Sanibel, and on the Sanibel- Captiva Conservation Foundation (SCCF). CCP was advised that the Proposed Rule was not sufficient to protect the environment and Vallisneria americana (Vallisneria) or tape grass during the dry season. Caloosahatchee River and Estuary The watershed of the Caloosahatchee River covers approximately 861,058 acres. The watershed consists of four sub-watersheds, three of which are upstream of the S-79 structure. The Tidal Caloosahatchee Basin sub-watershed (estuarine system) is downstream of the S-79 structure. The S-79 structure captures all the upstream discharges of fresh water that go into the estuarine system through the S-79 structure. Major tidal tributaries of the Tidal Caloosahatchee Basin are the Orange River and Telegraph Creek, which drain into the upper estuary downstream of the S-79 structure. Fresh water inflows from these and other tributaries also contribute fresh water into the estuarine system. The Caloosahatchee River was originally a natural watercourse running from its origin at Lake Flirt to San Carlos Bay. It is currently defined as the "surface waters that flow through the S-79 structure, combined with tributary contributions below S-79 that collectively flow southwest to San Carlos Bay." Fla. Admin. Code. R. 40E-8.021(2). Man-made alterations to the Caloosahatchee River began as early as 1884, but major alterations began in the 1930s with the authorization and construction of the C-43 Canal. The C-43 Canal runs 41.6 miles from Lake Okeechobee at Moore Haven, i.e., from the S-77 structure, to Olga, i.e., the S-79 structure. The C-43 Canal serves as a conveyance feature to drain water from the three sub-watersheds located upstream of the S-79 structure and convey regulatory discharges of water from Lake Okeechobee. In 1957, the United States Army Corps of Engineers (USACOE) prepared a report focused on drainage, flood control, and navigation needs of the Caloosahatchee River Basin, and one recommendation was construction of the S-79 structure. The key objectives of the S-79 structure were to eliminate undesirable salinity in the lower Caloosahatchee River, prevent the rapid depletion of water supplies, and raise the prevailing dry weather water table levels. The S-79 structure was constructed in 1965. It is a lock and dam structure that is also known as the Franklin Lock and Dam. The S-79 structure captures all upstream fresh water discharges that go into the CRE. The S-79 structure demarcates the head of the CRE, which extends 26 miles downstream to Shell Point, where it empties into San Carlos Bay in the southern portion of the greater Lower Charlotte Harbor Estuary. Most of this surface water flow takes a southerly route, flowing to the Gulf of Mexico under the Sanibel Causeway that crosses San Carlos Bay. When fresh water inflows are high, tidal action pushes some of this water back up into Matlacha Pass and Pine Island Sound. Additionally, some water exits to the south and flows into Estero Bay through Matanzas Pass. Salinity exhibits a strong gradient in the CRE. Changes in the watershed upstream of the S-79 structure have profoundly influenced the delivery of fresh water to the CRE. Runoff is now more variable with higher wet season flows and lower dry season discharges. Large volumes of fresh water during the wet season can flush salt water from the tidally-influenced sections of the water body, resulting in low salinity conditions throughout most of the CRE. In contrast, fresh water inflow at the S-79 structure can stop entirely during the dry season, especially during significant drought events. This results in saline intrusion that can extend upstream to the S-79 structure. Fluctuations of this magnitude at the head and mouth of the system cause mortality of organisms at both ends of the salinity gradient. Downstream of the S-79 structure, the CRE was significantly altered by multiple dredging activities, including the removal of extensive shoals and oyster bars. Seven automobile bridges, a railroad trestle, and the Sanibel Causeway were built between the 1880s and 1960s. A large canal network was built along the northern shoreline of the CRE in Cape Coral. To provide navigational access from the canal network to deeper water, multiple access channels were dredged within the CRE. Alterations to the delivery of fresh water combined with structural changes to the tidally-influenced sections of the water body have had lasting ecological consequences. These include the loss of extensive shoals and oyster bars, loss of a flourishing bay scallop fishery, and significant decline in seagrass cover in deeper areas. MFLs An MFL is the limit at which further withdrawals would be significantly harmful to the water resources or ecology of the area. The District's rules define significant harm as the "temporary loss of water resource functions, which results from a change in surface or ground water hydrology, that takes more than two years to recover, but which is considered less severe than serious harm." Fla. Admin. Code R. 40E-8.021(31). The rule further specifies that a water body's specific water resource functions addressed by an MFL are defined in the MFL technical support document. Id. MFLs are calculated using the best information available. The regulatory agency is required to consider changes and structural alterations to watersheds, and the constraints such changes or alterations placed on the hydrology of an affected watershed. Certain waterbodies may not serve their historical hydrologic functions and recovery of these waterbodies to historical hydrologic conditions may not be economically or technically feasible. Accordingly, the regulatory agencies may determine that setting an MFL for such a water body based on its historical condition is not appropriate. Caloosahatchee MFL For the CRE, MFL criteria were designed to protect the estuary from significant harm due to insufficient fresh water inflows and were not guidelines for restoration of estuarine functions to conditions that existed in the past. The MFL criteria consider three aspects of the flow in terms of potential significant harm to the estuary: (1) the magnitude of the flow or the volume of fresh water entering the estuary; (2) the duration of time that flows can be below the recommended level before causing significant harm; and (3) the return frequency, or the number of times the MFL can be violated over a number of years before it results in significant harm, recognizing that natural climatic variability will be expected to cause fresh water inflows to fall below recommended levels at some natural frequency. The CRE MFL initially adopted in 2001 was primarily based on the salinity tolerance of one valued ecosystem component (VEC). The VEC was Vallisneria americana or tape grass, a fresh water aquatic plant that tolerates low levels of salinity. A major assumption of this approach was that flow and salinity conditions that protect Vallisneria would also protect other key organisms in the estuary. The 2001 CRE MFL was based on a regression model for estimating the relationship between surface salinity measured at the Ft. Myers monitoring station located in the Ft. Myers Yacht Basin and discharge at the S-79 structure. Although the District monitors surface and bottom salinity at multiple stations in the CRE, the Ft. Myers monitoring station is located centrally in the CRE and at the historical downstream extent of the Vallisneria habitat. The Ft. Myers monitoring station also has the most comprehensive period of record of monitoring data available. The fixed data sondes that monitor surface and bottom salinity are located at 20 percent and 80 percent of total river depth measured at mean low water. The data sondes continuously measure temperature and specific conductivity and, depending on the manufacturer, contains programs that calculate salinity. Those calculations are based on standards recognized and used worldwide by estuarine, marine, and oceanographic scientists.1/ The regression model only implicitly included inflows from the Tidal Caloosahatchee Basin sub-watershed downstream of the S-79 structure. To address this, during the 2003 re-evaluation, a linear reservoir model of Tidal Caloosahatchee Basin inflows was developed. The regression model results showed that a total inflow from S-79 plus the Tidal Caloosahatchee Basin of about 500 cubic feet per second (cfs) was required to produce a salinity of 10 at the Ft. Myers monitoring station. Thus, the 2001 CRE MFL of 300 cfs measured at the S-79 structure would produce a salinity of 10 at the Ft. Myers monitoring station only with additional inflow from the downstream Tidal Caloosahatchee Basin sub- watershed. However, that additional inflow estimate was highly uncertain. The conclusion was that actual flow measurements over a period of time were needed in order to perform more robust calibrations for the new models that were being developed. The Re-evaluation The District's re-evaluation effort began in 2010 after the Conservancy of Southwest Florida filed a petition requesting review of the Caloosahatchee MFL. At the time, the governing board denied the petition but directed staff to undertake additional research and monitoring to ensure a future revision would be supported by the best information available. The first step was to review the September 2000 Final Peer Review Report (PRR) for the initial adoption. The 2000 PRR identified several items the District should consider, including a hydrodynamic salinity model, a numerical population model for Vallisneria, quantification of habitat value for Vallisneria, and documentation of the effects of minimum flows on downstream estuarine biota. The 2000 PRR documented concerns that the current MFL was based solely on the salinity tolerance of Vallisneria and recommended using multiple indicator species. To address those recommendations, the District conducted studies to evaluate multiple ecological indicators, such as zooplankton, aquatic vegetation, oysters, benthic communities, and blue crabs, in the Caloosahatchee from the S-79 structure to beyond Shell Point. In addition, the District collected flow data from the Tidal Caloosahatchee Basin sub-watershed for at least five years to develop watershed, flow, and hydrodynamic models that could properly simulate inflows and salinity responses. When the initial research was complete in 2016, the District published the Draft Science Document containing 11 component studies. In September 2016, the District held a two- day Science Symposium to present the 11 component studies and gather public comment. In response to public comment, the District performed additional evaluations, modeling, and updated the component studies to produce a Draft Technical Document. A Peer Review Panel reviewed the Draft Technical Document, which included the Draft Science Document. The Peer Review Panel has over 150 years of combined relevant scientific experience. The Peer Review Panel toured the CRE by air and water. The District also held a Peer Review Session to engage the public and obtain feedback. The Peer Review Panel's 2017 report (PRP report) stated that the District had "crafted a well-executed and well- documented set of field and laboratory studies and modeling effort" to re-evaluate the CRE MFL. The PRP report supported the 11 component studies, the modeling, the evaluations, and the initial proposed rule language. The Final Technical Document published in January 2018 incorporated five different models and additional science, examining the entire watershed and the criteria itself. The Final Science Document was Appendix A to the Final Technical Document and contained the scientific research and analysis that was done for the 11 component studies, the modeling, and the additional scientific analyses performed in response to public and stakeholder input. The District initiated rule development in December 2017. Rule development workshops were held in February and June 2018 and a stakeholder technical meeting was held in May 2018. The District validated the comments after each workshop and meeting, and revised the proposed rule language. The District published its Notice of Proposed Rule on July 23, 2018.2/ At its September 13, 2018, meeting, the District's governing board held a public hearing on the Proposed Rule. The mayors of Sanibel, Cape Coral, and the Town publicly commented at the hearing. After considering public comments, the governing board adopted the Proposed Rule. The District documented and responded to each public comment, memorializing the information in the Final Technical Document. Later, after the rule workshops and May 2018 technical meeting, the District prepared and presented all of the updated information, including public comment, at the September 2018 adoption hearing. Thus, the District's re-evaluation process was open and transparent. The Re-evaluated Caloosahatchee MFL The science supporting the re-evaluation involved a comprehensive assessment of the effects of diminished dry season fresh water inflows on the CRE. The dry season was chosen for two reasons. First, because it is well-established that the upstream migration of salt combined with reduced fresh water inflow alters the health and productivity of estuarine habitats. Second, because the dry seasons are the times when the current MFL criteria are likely to be exceeded or violated. The 11 component studies targeted specific concerns regarding physical and ecological characteristics. Together they offered a holistic understanding of the negative effects of diminished fresh water inflow on estuarine ecology. The re-evaluated MFL criteria were developed using a resource-based approach. The approach combined the VEC approach and the habitat overlap concept. The habitat overlap approach is based on the idea that estuaries serve a nursery function and salinity determines the distribution of species within an estuary, including distribution during different life stages. The combined approach studied the minimum flow requirements of the various indicator species in terms of magnitude, duration, and return frequency, resulting in the following three aspects of the flow: (1) for magnitude, a 30-day moving average flow of 400 cfs measured at the S-79 structure; for duration, an MFL exceedance occurs during a 365-day period when the 30-day moving average flow at S-79 is below 400 cfs and the 30-day moving average salinity exceeds 10 at the Ft. Myers salinity monitoring station; and (3) for return frequency, an MFL violation occurs when an exceedance occurs more than once in a five-year period. The magnitude component is based on the salinity requirements of Vallisneria, along with results from the 11 studies modeling salinity and considering the salinity requirements of the other VECs. The duration component is based mainly on the estimates of rate of loss of Vallisneria shoots when salinity rises above 10 and the recovery rate of the shoots when salinities fall back below 10. Return frequency was determined based on long-term rainfall records rather than flow measurements from the S-79 structure, which the PRP report felt was well justified. In addition to the component studies, the re-evaluated MFL criteria and existing recovery strategy were evaluated using a suite of hydrologic and ecological models simulating long-term fresh water inflow to the CRE associated with varying management options, the resulting salinity in the CRE, and the ecological response of indicator species that are sensitive to low fresh water inflows. Five models were utilized. Three models simulated fresh water inflows to the CRE: two for S-79 flows; and one for Tidal Caloosahatchee Basin sub-watershed flows. The other two models were a three-dimensional hydrodynamic salinity model and a Vallisneria model. Tidal Caloosahatchee Basin sub-watershed has a number of tributaries that drain fresh water into the CRE. The flow at several of the tributaries was monitored for a five-year period. The measured flow was used to calibrate a watershed model and conduct a long-term simulation. The results showed an average fresh water inflow for all seasons of approximately 430 cfs. The average fresh water inflow during the dry season was 245 cfs while the wet season average fresh water inflow was 613 cfs. Fresh water inflow from the Tidal Caloosahatchee Basin sub- watershed was approximately 20 percent of total fresh water inflow to the CRE while 80 percent was released through the S-79 structure. Petitioners' and Intervenors' Objections 400 cfs Is Too Low Sanibel relied on a memorandum prepared by Dr. David Tomasko (Tomasko report) concerning his company's review of the January 2018 Final Technical Document supporting the Proposed Rule. The Tomasko report, dated October 23, 2018, was in the form of a "technical memorandum" outlining "preliminary findings." The Tomasko report was admitted as a joint exhibit; however, Dr. Tomasko did not testify at the final hearing. The Tomasko report is hearsay that was not used to supplement or explain competent direct evidence. Although hearsay is admissible in this proceeding, it cannot be the sole basis for a finding of fact.3/ See § 120.57(1)(c), Fla. Stat. The District's expert witnesses, who testified at the final hearing, explained that ten of the 11 component studies identified average indicator flows at S-79 ranging from 237 to 545 cfs with standard deviations ranging from plus or minus 57 to plus or minus 774 cfs.4/ The District's experts performed three different evaluations of those flow results. They identified the mean of all the means, calculated the median of the means, and performed a probability density function. The flow results for each of the three evaluations were 381 cfs, 400 cfs, and 365 cfs, with standard deviations that ranged from plus or minus 277 cfs to plus or minus 706 cfs. The District's experts testified that the three flow results are indistinguishable from a statistical point of view. The District chose 400 cfs because it was the highest flow result, and, therefore, the most protective of the three. The Petitioners and Intervenors failed to present evidence that showed any deficiencies in the District's component studies, hydrologic, hydrodynamic, or statistical modeling, or analysis of compliance data. The preponderance of the evidence established that the District used the best available science to calculate the MFL criteria. The District did not act arbitrarily or capriciously when it chose 400 cfs as the magnitude component of the MFL criteria. Inclusion of Salinity in the MFL Criteria The preponderance of the evidence also established that Vallisneria continues to be a particularly useful indicator of environmental conditions in the CRE. It supports essential ecological goods and services, is sensitive to salinity fluctuations at the ecosystem scale, and has value to a variety of stakeholders. The location of Vallisneria habitat in the upper CRE and its negative response to increased salinity made it an excellent candidate as an ecological indicator for fresh water inflow. A combination of field monitoring, mesocosm studies, and modeling results allowed the application of Vallisneria responses as a platform to quantify the effects of high salinity duration in the upper CRE. Component Study Eight reviewed the development and initial application of a simulation model for Vallisneria in the CRE. The Vallisneria model was used to evaluate the salinity conditions that led to net annual mortality, or, in other words, the duration of high salinity exposure that led to decreased Vallisneria shoots versus the duration of low salinity conditions required for recovery. Component Study Seven included an analysis of the relationship between the number of consecutive days where salinity at the Ft. Myers monitoring station was greater than 10 and the percentage of initial Vallisneria shoots remaining at the end of each high salinity period. To further evaluate the duration element associated with the MFL criteria, the field monitoring data contained in Component Study Seven was evaluated with the mesocosm and modeling results. All three sources were analyzed similarly to derive a combined curve showing high salinity exposure duration that is significantly harmful to Vallisneria. The model also provided information that was used to quantify the duration of low salinity conditions required for Vallisneria to recover a relative fraction of shoots after high salinity exposure. Merging the exposure and recovery evaluations facilitated a determination of the unfavorable salinity duration that could significantly harm Vallisneria habitat. With significant harm defined as the environmental harm from which two years are required to recover, the determination was that Vallisneria should experience no more than 55 consecutive days of salinity greater than 10. However, stakeholders expressed concerns regarding the percentage loss of Vallisneria habitat after 55 days of high salinity exposure. In response, the District conducted further analysis of modeling results and revised the duration component to accept the stakeholder recommendation, now expressed in the Proposed Rule, of a 30-day moving average salinity greater than 10. The Petitioners and Intervenors argued that by expressing the MFL as a "flow plus salinity component" the Proposed Rule enlarges, modifies, or contravenes the specific provisions of law implemented. However, the duration component is part of compliance and represents the duration of time that flows can be below the recommended level before causing significant harm to the indicator species Vallisneria. The MFL in the Proposed Rule is a 30-day moving average flow of 400 cfs measured at the S-79 structure. Flow is both measured and operationally controlled at the S-79 structure. However, as previously found, there are other sources of fresh water entering the CRE downstream of the S-79 structure. The District does not control and cannot control these downstream sources, which modeling reveals contribute approximately 20 percent of total fresh water inflow to the CRE. By including salinity, the District can account for fresh water inflows coming from the tidal basin when there are low or no flows at S-79 since the significant harm threshold in the CRE is directly related to salinity tolerance of the indicator species Vallisneria. The District's experts also testified that salinity can be used as a flow component because it is not affected by chemical or biological processes and is an indicator of how much fresh water is entering the system.5/ Salinity is included in the duration component of the MFL criteria and is an exceedance criterion because the science established that the salinity gradient is crucial to the overall health of the CRE. Including salinity in the duration component of the MFL criteria achieves the purpose of the statutory mandate to set MFLs that are designed to avoid significant harm to the water resources and ecology of the area. No Unit of Measurement for Salinity The Petitioners and Intervenors argued that the Proposed Rule is vague because the language does not contain any units for salinity. The UNESCO calculation is the standard equation used by the estuarine and marine science community to convert specific conductivity and temperature data to salinity. The District's experts testified that the UNESCO calculation reports salinity as a ratio, which is a dimensionless number and has no units. The District uses the UNESCO calculation and performs the conversion in a spreadsheet that it maintains. In some instances, certain brands of data sondes are programmed to perform the calculation and provide the salinity number. The preponderance of the evidence established that use of the practical salinity unit (PSU) is not technically correct. PSU is a misnomer, a pseudo-unit equivalent to a unitless salinity number. The Petitioners' and Intervenors' expert witness, Dr. Anthony Janicki, conceded there is no difference between reporting salinity as unitless or as PSU. And although technically incorrect, he suggested that placing the word "practical" or putting "PSU" in the Proposed Rule would reduce confusion and vagueness. However, since the preponderance of the evidence established that use of PSU is not technically correct, the use of a pseudo-unit would actually cause confusion instead of reduce confusion. The Petitioners and Intervenors also argued that the Proposed Rule is vague because the language does not state that the method of measuring salinity is specific conductivity, or that the equation used to convert specific conductivity and temperature data to salinity is the standard developed by UNESCO. The Petitioners and Intervenors essentially argued that members of the public and those who may be regulated by the Proposed Rule are left to guess about the method or methods used to measure salinity. Because the Proposed Rule identifies and locates by latitude and longitude coordinates the Ft. Myers salinity monitoring station as the location where salinity would be measured for compliance, the Proposed Rule language is not vague. The Proposed Rule is not vague because it does not describe the data sondes, what parameters are measured by the data sondes, and how those parameters are converted to a salinity number. Salinity Monitoring Location and Mean Low Water The Petitioners and Intervenors argued that the Proposed Rule is vague for failing to define the phrase "20% of the total river depth at mean low water," and is arbitrary or capricious for failing to include more than one salinity monitoring station. Total river depth or the water column depth is a standardized measurement that is made from the surface down to the bottom of the river bed. Mean low water is commonly understood in the oceanographic and coastal sciences community as the average of all low tides over the time period defined as the national tidal datum epic. The District's expert witness, Dr. Cassondra Armstrong, testified that mean low water can be determined by using two documents prepared by the National Oceanographic and Atmospheric Administration (NOAA), i.e., the NOAA tide charts and glossary. The District's expert witnesses testified that "20% of the total river depth at mean low water" is the location of the data sonde at the Ft. Myers monitoring station that measures surface salinity. This is also the depth at which Vallisneria is located in the CRE. Since, the Proposed Rule language simply identifies the location of the existing data sonde at the Ft. Myers salinity monitoring station, the language is not vague. The preponderance of the evidence established that the Ft. Myers salinity monitoring station has two salinity data sondes, the one at 20 percent of the total river depth and the other at 80 percent. The data sonde at 20 percent of the total river depth was identified in the Proposed Rule for the following reasons. First, this is the depth where Vallisneria grows and is representative of the salinity exposure for Vallisneria. Second, it guarantees the data sonde is always submerged and able to record data. Third, it has the most comprehensive period of record of monitoring data available. As previously found, Vallisneria continues to be a particularly useful indicator of environmental conditions in the CRE. The location of Vallisneria habitat in the upper CRE and its negative response to increased salinity made it an excellent candidate as an ecological indicator for fresh water inflow. Because the preponderance of the evidence established that Vallisneria continues to be a particularly useful indicator of environmental conditions in the CRE, the choice of the Ft. Myers monitoring station is not arbitrary or capricious. Water Resource Functions vs. Environmental Values The District's MFL rule specifies that a water body's specific water resource functions addressed by an MFL are defined in the MFL technical support document. See Fla. Admin. Code R. 40E-8.021(31). The Final Technical Document identified the relevant water resource functions of the CRE as fish and wildlife habitats, estuarine resources, water supply, recreation, navigation, and flood control. The Petitioners and Intervenors argued that the environmental values listed in Florida Administrative Code Chapter 62-40, also known as the Water Resource Implementation Rule, were not adequately addressed in the Final Technical Document. A proposed rule challenge is not the proper forum to determine whether a proposed rule is consistent with the Water Resource Implementation Rule. Such a determination is within the exclusive jurisdiction of the Department of Environmental Protection under section 373.114(2), Florida Statutes. Consistency of the District's Proposed Rule with the Water Resource Implementation Rule of the Department of Environmental Protection is not a basis in this proceeding for a finding that the Proposed Rule is an invalid exercise of delegated legislative authority. Other Issues The Petitioners and Intervenors raised other issues during the hearing, although not specifically argued in their proposed final order. Since those issues were identified as disputed issues in the Joint Pre-hearing Stipulation, they are addressed below. 1. Elimination of Single-day Exceedance Criterion During the rulemaking process, Sanibel and SCCF sent the District a letter requesting justification for eliminating the single-day exceedance salinity criterion in the current rule. The District staff evaluated the available Caloosahatchee River MFL compliance record, dating back to when the MFL was adopted in September 2001. The District maintains a historical record of MFL monitoring data and reviewed it to determine if the single-day exceedance salinity criterion was exceeded before the 30-day moving average criterion. The compliance record showed five exceedance events of the single-day salinity criterion have occurred. However, the compliance record also showed that the 30- day moving average salinity criterion had already been exceeded before the five events occurred. In other words, the single-day criterion was never exceeded before the 30-day moving average criterion. Based on this evaluation, the District eliminated the single-day exceedance salinity criterion because it did not provide any additional resource protection. The District's decision was not arbitrary or capricious. 2. Not Using the Latest Model Evaluation of recommended MFL criteria and a recovery strategy for the CRE were greatly aided by integration of a suite of hydrologic and ecological models simulating (1) long-term fresh water inflow associated with varying management options, (2) the resulting salinity in the estuary, and (3) ecological response of indicator species that are sensitive to low fresh water inflows. Five models were specifically utilized, including three models for simulations of fresh water inflows to the CRE, a three-dimensional hydrodynamic salinity model, and a Vallisneria model. The three models simulating fresh water inflows included (1) the South Florida Water Management Model (SFWMM) to simulate fresh water discharges at S-79, which includes regional operations of Lake Okeechobee and incorporates Caloosahatchee River irrigation demands; (2) the C-43 Reservoir Model, which uses the SFWMM-simulated daily S-79 flow as input and simulates the management benefit of the C-43 Reservoir; and (3) the Watershed (WaSh) Model to simulate tidal tributary inflow from the Tidal Caloosahatchee Basin sub-watershed. The Caloosahatchee Hydrodynamic/Salinity Model was based on the Curvilinear Hydrodynamic Three-dimensional Model (CH3D) modeling framework with the functionality of simulating the spatial salinity structure across the entire estuary. The Vallisneria Model took the CH3D modeled salinity as input to simulate Vallisneria growth at critical locations in the estuary. The District did review the more recent Environmental Fluid Dynamic Code (EFDC) model developed for the Caloosahatchee Total Maximum Daily Load (TMDL) and being used by the Department of Environmental Protection. The District's expert witness, Dr. Detong Sun, testified that until 2014, the hydrodynamic part of the EFDC model was not working well. He testified that in 2016, the District still had concerns and suggested the use of the District's continuous monitoring data from seven locations across the CRE rather than grab samples for model calibration. Dr. Sun's opinion was that the EFDC model has improved in recent years, but was still behind the CH3D model in terms of performance. The District's expert witness, Dr. Amanda Kahn, testified that the water quality component of the EFDC model was not appropriate for this re-evaluation because the MFL is about water quantity, not water quality. The water quality component of the EFDC model addresses nutrient loadings, not minimum flows. Dr. Kahn also testified that in setting MFL criteria for the CRE, salinity was not a water quality component. Salinity was used as a water quantity component because it does not change with biological processes and can be a measure of how much fresh water is coming into the system. Based on a preponderance of the evidence, the District's decision not to use the EFDC model was not arbitrary or capricious. 3. Seasonality The Petitioners and Intervenors argued that the District is required to set an MFL that varies by season. For the CRE, the District set MFL criteria that protect the system from low flow that would occur in either the wet or dry season. As previously found, the re-evaluation studies focused on the dry season for two reasons: first, because it is well-established that the upstream migration of salt combined with reduced fresh water inflow alters the health and productivity of estuarine habitats; and second, because the dry seasons are the times when the current MFL criteria are likely to be exceeded or violated. The MFL statute states that "when appropriate, [MFLs] may be calculated to reflect seasonal variations." § 373.042(1)(b), Fla. Stat. The preponderance of the evidence showed that for the CRE, it was not necessary to set an MFL that varied by season. Improper Purpose The Petitioners, Sanibel, Cape Coral, and the Town, did not participate in this proceeding primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of litigation. The Petitioners did not participate in this proceeding for an improper purpose. The Intervenors, Fort Myers, Estero, Bonita Springs, and CCP, did not participate in this proceeding primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of litigation. The Intervenors did not participate in this proceeding for an improper purpose.
Findings Of Fact By application number 21312, the applicant seeks a ten year water use permit for a total annual diversion of 3,831 million gallons to provide water and sewer services to an area containing approximately 7,300 acres. In September of 1969, the Florida Public Service Commission granted the applicant certificates of convenience and necessity. The existing facilities of the applicant include nine wells and an average capacity of 700 gallons per minute each. Based upon historical data and taking into accourt the reduction of construction in the service area, the projected 1984 water demand is 375 gallons per day per unit. This is equivalent to an average of 150 gallons per day per person, using a figure of 2.5 persons per living unit. The ultimate estimated population is to be 70,000 to 80,000 people with 28,000 to 32,000 living units. Based upon the average capacities of the wells, in order to meet the projected demand a total number of 22 or 23 wells will be required. This includes the nine existing wells, eleven proposed wells with the same 700 gallon per minute average and a fifteen percent standby capability of two or three additional wells. Rather than the total number of wells utilized -- 22 or 23, -- what is important is the total gallon per minute capacity of 15,400. An allocation based on this data would be equal to the applicant's requested annual maximum diversion of 3,831 million gallons and a daily maximum diversion of 18.37 million gallons. The requested diversion presents no threat of salt water intrusion. The proposed well sites will create no adverse impact upon the Fort Lauderdale well fields. While there is evidence of recharge to the aquifer from runoff waters, there is insufficient data to determine the exact amount which will be returned. For this reason, the staff report's water budget calculations are conservative.
Recommendation Based upon the above findings of fact and conclusions of law, it is recommended that a ten year permit be issued to the applicant for a maximum annual diversion of 3,831 million gallons; a maximum daily diversion of 18.37 million gallons and a maximum installed field capacity of 15,400 gallons per minute, utilizing 22 or 23 wells with a capacity of 700 gallons per minute each. It is further recommended that the applicant be subject to the conditions set forth on page 5 of the staff report (Exhibit 8) concerning the submission of monthly reports of daily pumpage and actual connections or population served, conformance with health department standards of the water quality of all wells, and the installation and maintenance of an observation well and monthly reports of the data obtained therefrom. Respectively submitted and entered this 10th day of May, 1976, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Mr. John R. Maloy Executive Director Central and Southern Florida Flood Control District P.O. Box V West Palm Beach, Florida 33402 Mr. Edward B. Deutsch 350 Southern Federal Building 400 North State Road 7 Margate, Florida 33063 Mr. John Wheeler P.O. Box V West Palm Beach, Florida 33402 Attorney for the Central and Southern Florida Flood Control District
The Issue Whether Rules 40B-1.702(4); 40B-4.1020(12) and (30); 40B-4.1030; 40B-4.1040(1)(b) and (c); 40B-4.2030(4); 40B-4.3000(1)(a); 40B-4.3010; 40B-4.3020; 40B-4.3030; 40B- 4.3040; and 40B-400.103(1)(h), Florida Administrative Code, of the Suwannee River Water Management District, are an invalid exercise of delegated legislative authority for reasons described in the Second Amended Petition to Determine Validity of Rules.
Findings Of Fact Stipulated Facts Angelo's is a Florida Limited Partnership, whose address is 26400 Sherwood, Warren, Michigan 48091. The District is an agency of the State of Florida established under Chapter 373, Florida Statutes, with its address at 9225 County Road 49, Live Oak, Florida 32060. Angelo's owns property in Hamilton County approximately four miles to the east of Interstate 75 and to the north of U.S. Highway 41, immediately to the east of the Alapaha River. Angelo's conducts commercial sand mining operations on a portion of its property pursuant to various agency authorizations, including an Environmental Resource Permit (ERP) issued by the Florida Department of Environmental Protection (Department), Permit No. 158176-001, and a Special Permit issued by Hamilton County, SP 98-3. The ERP was issued by the Department pursuant to its authority under Chapter 373, Part IV, Florida Statutes. Angelo's mining operations constitute a "mining project" as that term is used in Section II.A.1.e of an Operating Agreement Concerning Regulation under Part IV, Chapter 373, Florida Statutes, and Aquaculture General Permits under Section 403.814, Florida Statutes, between the District and the Department (Operating Agreement). The Operating Agreement has been adopted as a District rule pursuant to Rule 40B-400.091, Florida Administrative Code. Angelo's has filed with the Department an application to modify its ERP to expand its sand mining operations into an area of its property immediately to the west of its current operations (the "proposed expanded area"). Angelo's application is being processed by the Department at this time. Angelo's ERP modification application is being processed by the Department under the Operating Agreement. The District has asserted permitting jurisdiction over the proposed expanded area because the proposed sand mining activities would occur in what the District asserts to be the floodway of the Alapaha. The District asserts that an ERP would be required from the District so that the District can address the work of the district (WOD) impacts. Petitioner has not filed a permit application with the District regarding the project. It is Petitioner's position that to do so would be futile. The Challenged Rules The rules or portions thereof which are challenged in this proceeding are as follows: Rule 40B-1.702(4), Florida Administrative Code, reads as follows: (4) A works of the district permit under Chapter 40B-4, F.A.C., must be obtained prior to initiating any project as outlined in (3) above within a regulatory floodway as defined by the District. Rule 40B-4.1020(12) and (30), Florida Administrative Code, read as follows: (12) "Floodway" or 'regulatory floodway" means the channel of a river, stream, or other watercourse and adjacent land areas that must be reserved in order to discharge the 100-year flood without cumulatively increasing the 100-year flood elevation more than a designated height. Unless otherwise noted, all regulatory floodways in the Suwannee River Water Management District provide for no more then one-foot rise in surface water. * * * (30) "Work of the district" means those projects and works including, but not limited to, structures, impoundments, wells, streams, and other watercourses, together with the appurtenant facilities and accompanying lands, which have been officially adopted by the governing board as works of the district. Works of the district officially adopted by the board are adopted by rule in Rule 40B-4.3000 of this chapter. Rule 40B-4.1030, Florida Administrative Code, reads as follows: The implementation dates of this chapter are as follows: January 1, 1986 for Rule 40B- 4.1040(1)(a) which requires persons to obtain surfacewater management permits. April 1, 1986 for Rule 40B- 4.1040(1)(b) and Rule 40B-4.3040 which require persons to obtain works of the district development permit if the proposed development is in one of the following areas adopted as a work of the district. The Alapaha River and its floodway in Hamilton County, Florida; The Aucilla River and its floodway in Jefferson, Madison, or Taylor counties, Florida; The Suwannee River or its floodway in Columbia, Hamilton, Lafayette, Madison, or Suwannee counties, Florida; or The Withlacoochee River and its floodway in Hamilton or Madison counties, Florida. (c) July 1, 1986 for Rule 40B-4.1040(1)(b) or 40B-4.3040 which require persons to obtain work of the district development permit if the proposed development is in one of the following areas adopted as a work of the district. The Santa Fe River and its floodway in Alachua, Bradford, Columbia, Gilchrist, Suwannee, or Union counties, Florida; or The Suwannee River and its floodway in Dixie, Gilchrist, or Levy counties, Florida. Rule 40B-4.1040(1)(b) and (c), Florida Administrative Code, reads as follows: (1) Permits are required as follows: * * * Works of the district development permit prior to connecting with, placing structures or works in or across, discharging to, or other development within a work of the district. When the need to obtain a works of the district development permit is in conjunction with the requirements for obtaining a surfacewater management permit, application shall be made and shall be considered by the district as part of the request for a surfacewater management permit application. Otherwise, a separate works of the district development permit must be obtained. Rule 40B-4.2030(4), Florida Administrative Code, reads as follows: (4) The new surfacewater management systems or individual works shall not facilitate development in a work of the district if such developments will have the potential of reducing floodway conveyance. (emphasis supplied) Rule 40B-4.3000(1)(a), Florida Administrative Code, reads as follows: The governing board is authorized to adopt and prescribe the manner in which persons may connect with or make use of works of the district pursuant to Section 373.085, Florida Statutes. Further, Section 373.019(15) provides that works of the district may include streams and accompanying lands as adopted by the governing board. In order to implement the non-structural flood control policy of the district, the governing board finds it is necessary to prevent any obstruction of the free flow of water of rivers and streams within the district. Therefore, the governing board does hereby adopt the following rivers and their accompanying floodways as works of the district: The Alapaha River and its floodway in Hamilton County, Florida; . . . . Rule 40B-4.3010, Florida Administrative Code, reads as follows: A general works of the district development permit may be granted pursuant to the procedures in Rule 40B-1.703 to any person for the development described below: Construction of a structure for single-family residential or agricultural use including the leveling of land for the foundation and associated private water supply, wastewater disposal, and driveway access which is in compliance with all applicable ordinances or rules of local government, state, and federal agencies, and which meets the requirements of this chapter. A general permit issued pursuant to this rule shall be subject to the conditions in Rule 40B-4.3030. Rule 40B-4.3020, Florida Administrative Code, reads as follows: Content of Works of the District Development Permit Applications. Applications for a general work of the district development permit shall be filed with the district and shall contain the following: Form 40B-4-5, "Application for General Work of the District Development Permit," Suwannee River Water Management District, 4-1-86, hereby incorporated by reference and which contains the following: The applicant's name and complete address including zip code; The owner's name and complete address if applicant is other than the owner; If applicable, the name, complete address, phone number, and contact person of the applicant or owner; Copies of all permits received from local units of government, state, or federal agencies, specifically a copy of the building or development permit issued by the appropriate unit of local government, including any variances issued thereto, and a copy of the onsite sewage disposal system permit issued by the Florida Department of Health and Rehabilitative Services under Chapter 10D- 6, Florida Administrative Code; A site plan to scale showing all improvements, work, or works with any conditions or limitations placed thereon; and Any supporting calculations, designs, surveys, or applicable documents, which in the applicant's opinion, may support the application. Applications for individual or conceptual approval works of the district development permits shall be filed with the district and shall contain the following: Form 40B-4-4, "Application for Surfacewater Management System Construction, Alteration, Operation, Maintenance, and/or Works of the District Development", Suwannee River Water Management District, 10-1-85, hereby adopted by reference and which contains the following: The applicant's name and complete address including zip code; The owner's name and complete address if applicant is other than the owner; If applicable, the name, complete address, phone number, and contact person of the owner. General project information including: The applicant's project name or identification number; The project location relative to county, section, township, and range, or a metes and bounds description; The total project area in acres; The total land area owned or controlled by the applicant or owner which is contiguous with the project area; A description of the scope of the proposed project including the land uses to be served; A description of the proposed surfacewater management system or work; A description of the water body or area which will receive any proposed discharges from the system; and Anticipated beginning and ending date of construction or alteration. Copies of all permits received from, or applications made to, local units of government, state, or federal agencies. A site plan to scale showing all improvements, work, or works with any conditions or limitations placed thereon. Any supporting calculations, designs, surveys, or applicable legal documents, which in the applicant's opinion, support the application. Copies of engineer or surveyor certifications required by this chapter. Rule 40B-4.3030, Florida Administrative Code, reads as follows: Conditions for Issuance of Works of the District Development Permits. The district will not approve the issuance of separate permits for development in a work of the district for any proposed project that requires a district surfacewater management permit pursuant to Part II of this chapter. For such projects, development in a work of the district may be authorized as part of any surfacewater management permit issued. The district will not approve the issuance of a works of the district development permit for any work, structures, road, or other facilities which have the potential of individually or cumulatively reducing floodway conveyance or increasing water-surface elevations above the 100-year flood elevation, or increasing soil erosion. The district will presume such a facility will not reduce conveyance or increase water-surface elevations above the 100-year flood elevation or increase soil erosion if: Roads with public access are constructed and laid out in conformance with the minimum standards of local government. Where roads are not required to be paved, the applicant must provide design specifications for erosion and sediment control. Where roads are required to be paved, swales will generally be considered adequate for erosion and sediment control; Buildings in the floodway are elevated on piles without the use of fill such that the lowest structural member of the first floor of the building is at an elevation at least one foot above the 100-year flood elevation; The area below the first floor of elevated buildings is left clear and unobstructed except for the piles or stairways; A permanent elevation monument is established on the property to be developed by a surveyor. The monument shall be adequate to establish land surface and minimum buildup elevations to the nearest 1/100 of a foot; No permanent fill or other obstructions are placed above the natural grade of the ground except for minor obstructions which are less than or equal to 100 square feet of the cross-sectional area of the floodway on any building or other similar structure provided that all such obstruction developed on any single parcel of land after the implementation date of this chapter is considered cumulatively; No activities are proposed which would result in the filling or conversion of wetlands. For any structure placed within a floodway which, because of its proposed design and method of construction, may, in the opinion of the district, result in obstruction of flows or increase in the water surface elevation of the 100-year flood, the district may require as a condition for issuance of a work of the district development permit that an engineer certify that such a structure will not obstruct flows or increase 100-year flood elevations. The following conditions shall apply to all works of the district development permits issued for development on lands subdivided after January 1, 1985: Clearing of land shall be limited [except as provided in (b) and (c) below] to that necessary to remove diseased vegetation, construct structures, associated water supply, wastewater disposal, and private driveway access facilities, and no construction, additions or reconstruction shall occur in the front 75 feet of an area immediately adjacent to a water. Clearing of vegetation within the front 75 feet immediately adjacent to a water shall be limited to that necessary to gain access or remove diseased vegetation. Harvest or regeneration of timber or agricultural crops shall not be limited provided the erosion of disturbed soils can be controlled through the use of appropriate best management practices, the seasonal scheduling of such activities will avoid work during times of high-flood hazard, and the 75 feet immediately adjacent to and including the normally recognized bank of a water is left in its natural state as a buffer strip. As to those lands subdivided prior to January 1, 1985, the governing board shall, in cases of extreme hardship, issue works of the district development permits with exceptions to the conditions listed in Rule 40B-4.3030(4)(a) through (c). The 75-foot setback in paragraphs (a) through (d) above shall be considered a minimum depth for an undisturbed buffer. The limitations on disturbance and clearing within the buffer as set out in paragraphs through (d) above shall apply, and any runoff through the buffer shall be maintained as unchannelized sheet flow. The actual depth of the setback and buffer for any land use other than single-family residential development, agriculture, or forestry shall be calculated in accordance with the methodology in: "Urban Hydrology for Small Watersheds", U.S. Department of Agriculture, Soil Conservation Service, Engineering Division, Technical Release 55, June 1986; and, "Buffer Zone Study for Suwannee River Water Management District", Dames and Moore, September 8, 1988, such that the post-development composite curve number for any one-acre area within the encroachment line does not exceed; a value of 46 for areas within the encroachment line with predominantly Class A soils; a value of 65 for areas within the encroachment line with predominantly Class B soils; a value of 77 for areas within the encroachment line with predominantly Class C soils; or a value of 82 for areas within the encroachment line with predominantly Class D soils. (emphasis supplied) Rule 40B-4.3040, Florida Administrative Code, reads as follows: Unlawful Use of Works of the District. It shall be unlawful to connect with, place a structure in or across, or otherwise cause development to occur in a work of the district without a works of the district development permit. The district may use any remedy available to it under Chapter 120 or 373, Florida Statutes, and Chapter 40B-1, Florida Administrative Code, to cause an unpermitted development to be removed or permitted. It shall be unlawful for any permitted use to violate the provisions of Chapter 373, Florida Statutes, or this chapter, or the limiting conditions of a works of the district development permit. The district may use any remedy available to it under Chapter 120 or 373, Florida Statutes, and Chapter 40B-1, Florida Administrative Code, to cause the unpermitted use to be removed or brought into compliance with Chapter 373, Florida Statutes, and this chapter. Damage to works of the district resulting from violations specified in Rule 40B-4.3040(1) and (2) above shall be repaired by the violator to the satisfaction of the district. In lieu of making repairs, the violator may deposit with the district a sufficient sum to insure such repair. Rule 40B-400.103(1)(h), Florida Administrative Code, reads as follows: (1) In order to obtain a standard general, individual, or conceptual approval permit under this chapter or chapter 40B-4, F.A.C., an applicant must provide reasonable assurance that the construction, alteration, operation, maintenance, removal or abandonment of a surface water management system: * * * (h) Will not cause adverse impacts to a work of the District established pursuant to s. 373.086. . . . Facts Based Upon the Evidence of Record History of the rules Mr. David Fisk is Assistant Director of the District. At the time of the hearing, he had been employed there for 26 and one-half years. He played a significant role in the rule adoption process of the rules that are the subject of this dispute. As part of that process, the District entered into a consulting contract with an engineering, planning, and consulting firm and consulted with the U.S. Corps of Engineers and the Federal Emergency Management Agency (FEMA), to conduct what are described as the FEMA flood studies. Additionally, the district commissioned an aerial photography consultant who provided a series of rectified ortho photographs of the entire floodplain of the rivers within the District, and a surveying subcontractor who provided vertical control and survey cross sections and hydrographic surveys of the rivers. The District also worked in conjunction with the United States Geological Survey to accumulate all of the hydrologic record available on flooding. The information was given to the U.S. Army Corps of Engineers who, operating under FEMA guidelines for conducting flood insurance rate studies, performed the analytical and computer modeling work to identify the flood plains and floodway boundaries. The District used the amassed knowledge of maps, cross sections and surveys that were developed as part of the FEMA flood studies as technical evidence or support for the adoption of the works of the district rules. Following a series of public workshops and public hearings in 1985, the rules were adopted and became effective in 1986. None of the rules were challenged in their proposed state. The District adopted the floodways of the Suwannee, Santa Fe, Alapaha, Aucilla, and Withlacoochee Rivers as works of the district. According to Mr. Fisk, the District adopted the rules pursuant to Section 373.086, Florida Statutes, which provided authority to the District to adopt district works and Section 373.085, Florida Statutes, which provided authority to regulate activities within those works. The Floodway Line Petitioner hired Mr. John Barnard, a professional civil engineer, with extensive environmental permitting experience, to look at the floodway and floodplain issues associated with Petitioner's site and project. Mr. Barnard conducted an engineering study entitled, "Floodplain Evaluation." It was Mr. Barnard's opinion that FEMA's determination of the floodway line was less than precise. Mr. Barnard used FEMA's data regarding the base flood elevation but manually changed the encroachment factor resulting in his placement of the floodway line in a different location than determined by FEMA. Mr. Barnard acknowledged that different engineers using different encroachment factors would reach different conclusions.1/ Respondent's expert in hydrology and hydraulic engineering, Brett Cunningham, noted that the definition of floodway in Rule 40B-4.1020(12), Florida Administrative Code, is essentially the same definition that used is in the FEMA regulations and which also is commonly used across the country in environmental rules and regulations. Mr. Barnard also acknowledged that the District's definition of "floodway", as found in Rule 40B-4.1020(12), Florida Administrative Code, is fairly commonly used by environmental regulatory agencies. Moreover, it was Mr. Cunningham's opinion that the Alapaha River is a stream or watercourse within the meaning of the rule and its floodway an accompanying land. In Mr. Cunningham's opinion, the FEMA flood insurance studies are widely used across the country for a variety of reasons and are typically relied upon by hydrologists and engineers to locate floodways. The definition of "works of the district" in Rule 40B-1020(30), Florida Administrative Code, is taken directly from the language found in Section 373.019(23), Florida Statutes. The statutory definition includes express references to streams and other watercourses, together with the appurtenant facilities and accompanying lands. Petitioner alleges that the phrase "will not cause adverse impact to a work of the SRWMD" as found in Rule 40B- 400.103(1)(h) is not clear because it does not identify what specific adverse impacts are being reviewed. While Petitioner's expert, Mr. Price, was not clear as to what the phrase means, Respondent's expert, Mr. Cunningham, understood the meaning of the phrase and noted that "adverse impact" is a phrase which is very commonplace in the rules and regulations of environmental agencies and is attributed a commonsense definition. The expert engineers differed in their opinions as to the meaning of the term "potential for reducing floodway conveyance" as used in Rule 40B-4.2030(4), Florida Administrative Code. According to Petitioner's expert engineer, Mr. Barnard, "potential for reducing floodway conveyance" is not a specific term that is open to interpretation as an engineer, and that he cannot quantify what constitutes "potential." Respondent's expert, Mr. Cunningham, understood the meaning of the phrase to be any increase in floodway conveyance. It was his opinion that there was nothing about that phrase to cause confusion. Rule 40B-4.3030, Florida Administrative Code, addresses conditions for issuance of works of the district development permits. Petitioner's expert Mr. Price testified that there is no quantification to what constitutes an "increase in soil erosion" as referenced in subsection (2) and linked the reference of soil erosion to a 100-year flood event referenced in the same subsection. Mr. Cunningham was of the opinion that there is no need to quantify an increase in soil erosion in the rule. He noted that soil erosion is used in a common sense manner and that attempting to put a numerical limit on it is not practical and "it's not something that's done anywhere throughout the country. It's just not something that lends itself to easy quantification like flood stages do". Mr. Cunningham's opinion that the words and phrases which Petitioner asserts are vague are words of common usage and understanding to persons in the field is the more persuasive testimony. This opinion is also consistent with statutory construction used by courts which will be addressed in the conclusions of law.
The Issue The issue is whether the applicant for an Environmental Resource Permit ("ERP"), the City of Deltona ("City" or "Applicant"), has provided reasonable assurance that the system proposed complies with the water quantity, environmental, and water quality criteria of the St. Johns River Water Management District's ("District") ERP regulations set forth in Florida Administrative Code Chapter 40C-4, and the Applicant's Handbook: Management and Storage of Surface Waters (2005).
Findings Of Fact The District is a special taxing district created by Chapter 373, Florida Statutes, charged with the duty to prevent harm to the water resources of the District, and to administer and enforce Chapter 373, Florida Statutes, and the rules promulgated thereunder. The City of Deltona is a municipal government established under the provisions of Chapter 165, Florida Statutes. The Lake Theresa Basin is comprised primarily of a system of interconnected lakes extending from Lake Macy in the City of Lake Helen to the Butler Chain of Lakes (Lake Butler and Lake Doyle). The Lake Theresa Basin is land-locked and does not have a natural outfall to Lake Monroe and the St. Johns River. In 2003, after an extended period of above-normal rainfall in the Deltona area, the lakes within the land-locked Lake Theresa Basin staged to extremely high elevations that resulted in standing water in residential yards, and rendered some septic systems inoperable. Lake levels within the Lake Theresa Basin continued to rise and were in danger of rising above the finished floor elevations of some residences within the basin. On March 25, 2003, the District issued an Emergency Order (F.O.R. No. 2003-38) authorizing the construction and short-term operation of the Lake Doyle and Lake Bethel Emergency Overflow Interconnection. Since wetland and surface water impacts would occur, the Emergency Order required the City of Deltona to obtain an ERP for the system. The project area is 4.1 acres, and the system consists of a variable water structure on the west shore of Lake Doyle connected to a series of pipes, swales, water control structures, and wetland systems which outfall to a finger canal of Lake Bethel, with ultimate discharge to Lake Monroe and the St. Johns River. The first segment of the system extends downstream from the weir structure on the west shore of Lake Doyle via a pipe entrenched in the upland berm of the Sheryl Drive right-of-way. The pipe passes under Doyle Road and through xeric pine-oak uplands to the northeast shore of a large (approximately 15 acres) deepwater marsh. Water flows south through the deepwater marsh where it outfalls through four pipes at Ledford Drive. Two of the four pipes are overflow structures, controlled by canal gates. The pipes at Ledford Drive discharge into a ditch and into a large (greater than 20 acres) shallow bay swamp. The south end of the bay swamp is defined (and somewhat impounded) by a 19th Century railroad grade. Water flows through the bay swamp where it outfalls through five pipes at the railroad grade. Three of the five pipes are overflow structures, controlled by channel boards. The pipes at the railroad grade discharge to a 1500-foot long finger canal that was dug some time during the period 1940-1972 from the north central shore of Lake Bethel. The overflow interconnection system has three locations whereby the system can be shut down: 1) Lake Doyle--a control weir, controlled by three sluice gates; 2) Ledford Drive--two thirty-inch reinforced concrete pipes, controlled by canal gates; and 3) railroad grade--three thirty-inch reinforced concrete pipes, controlled by channel boards (collectively referred to as "Overflow Structures"). The Overflow Structures are designed to carry the discharge of water from Lake Doyle to Lake Bethel. With the Overflow Structures closed the system returns to pre-construction characteristics, meaning there will be no increase or decrease in the quantity or quality of water throughout the path of the system as a result of the project. An unequivocal condition of the permit is that the system would operate with all of the Overflow Structures closed. As an added assurance, the City proposes to place a brick and mortar plug in the Lake Doyle weir structure outfall pipe to prevent any discharge from the weir. The City has submitted to the District preliminary plans for a future phase in which the system would be modified for the purpose of alleviating high water levels within the Lake Theresa Basin when the water level in Lake Doyle rises above an elevation of 24.5 feet. The District shall require a separate permit application to be submitted for such future plans. Petitioner, Barbara Ash, has lived on Lake Theresa for 19 years. Ms. Ash lives upstream from the area of the weir that will be plugged in accordance with the ERP. She does not trust either the City of Deltona to comply with or the District to enforce the conditions of the ERP applied for by the City. Petitioner, Barbara Ash, also served as the qualified representative for Petitioners, Francell Frei, Bernard J. and Virginia Patterson, and Ted and Carol Sullivan. Ms. Ash represented that Ms. Frei has lived on Lake Theresa for 12 years, and both the Pattersons and the Sullivans live on Lake Louise, which is within the area of concern in this proceeding. Petitioner, Diana Bauer, has lived on Lake Theresa since February 2004. She fears that the lake will become too dry if the system is allowed to flow. She also believes the wildlife will be adversely affected if the water levels are too low since many species need a swampy or wet environment to thrive. She fears her property value will decrease as a result of the approval of the ERP. She also does not trust either the City to comply with or the District to enforce the conditions of the ERP. Petitioner, Howard Ehmer, lives two to three hundred yards down Lake Theresa from Ms. Bauer. He is concerned about the lake bed being too dry and attracting people on all terrain vehicles who enjoy driving around the lake bottom. He is concerned about his property value decreasing if the lake bed is dry. Further, when the lake level is too low, people cannot enjoy water skiing, boating, and fishing on Lake Theresa. Petitioner, Phillip Lott, a Florida native, has also owned and lived on property abutting Lake Theresa since 1995. Mr. Lott has a Ph.D. in plant ecology, and M.P.A. in coastal zone studies, an M.B.A. in international business, and a B.S. in environmental resource management and planning. Mr. Lott has been well acquainted with the water levels on Lake Theresa for many years. Based upon his personal observations of the lake systems in the Deltona area over the years, Mr. Lott has seen levels fluctuate greatly based upon periods of heavy and light rainfall. Mr. Lott is concerned that the District will permit the City to open the weir to let water flow through the system and cause flooding in some areas and low water levels in other areas. He fears that the District will allow the water to flow and upset the environmental balance, but he admits that this ERP application is for a closed system that will not allow the water to flow as he fears. Mr. Lott similarly does not trust the City to comply with and the District to enforce the conditions of the ERP. Petitioners, James E. and Alicia M. Peake, who were represented by Steven L. Spratt at hearing as their qualified representative, live on Lake Louise, which is interconnected with the Lake Theresa basin. The Peakes are concerned that if the level of Lake Louise drops below 21 feet, nine inches, they will not be able to use the boat launch ramps on the lake. Petitioner, Steven L. Spratt, also lives on Lake Louise, and is concerned about the water levels becoming so low that he cannot use the boat launch on the lake. He has lived on the lake since 2000, and remembers when the water level was extremely low. He fears that approval of the ERP in this case will result in low levels of water once again. Petitioner, Gloria Benoit, has live on Lake Theresa for two years. She also enjoys watching recreational activities on the lake, and feels that approval of the ERP will devalue her lakefront property. Ms. Benoit appeared at the first day of the hearing, but offered no testimony on her behalf. J. Christy Wilson, Esquire, appeared prior to the final hearing as counsel of record for Petitioners, Steven E. Larimer, Kathleen Larimer, and Helen Rose Farrow. Neither Ms. Wilson nor any of the three Petitioners she represented appeared at any time during the hearing, filed any pleadings seeking to excuse themselves from appearing at the final hearing, or offered any evidence, testimony, pre- or post- hearing submittals. Petitioner, Gary Jensen, did not appear at hearing, did not file any pleadings or papers seeking to be excused from appearing at the final hearing, and did not offer any evidence, testimony, pre- or post-hearing submittals. Both the City and the District recognize that areas downstream from the project site, such as Stone Island and Sanford, have experienced flooding in the past in time of high amounts of rainfall. The system proposed by the City for this ERP will operate with the overflow structures closed and a brick and mortar plug in the outfall pipe to prevent water flow from Lake Doyle to Lake Bethel. So long as the overflow structures are closed, the system will mimic pre-construction flow patterns, with no increase in volume flowing downstream. The District has considered the environment in its proposed approval of the ERP. The area abutting the project is little urbanized and provides good aquatic and emergent marsh habitat. With the exception of the western shore area of the deepwater marsh ("west marsh area"), the bay swamp and remaining deepwater marsh area have good ecological value. In the 1940's, the west marsh area was incorporated into the drainage system of a poultry farm that occupied the site. This area apparently suffered increased nutrient influxes and sedimentation that contributed to a proliferation of floating mats of aquatic plants and organic debris. These tussocks reduced the deepwater marsh's open water and diminished the historical marsh habitat. Water under the tussocks is typically anoxic owing to total shading by tussocks and reduced water circulation. Thick, soft, anaerobic muck has accumulated under the matted vegetation. Exotic shrubs (primrose willow Ludwigia peruvania) and other plants (cattails Typha spp.) dominate the tussocks. The construction of the project, from the 2003 Emergency Order, resulted in adverse impacts to 1.3 acres of wetlands having moderately high- to high ecological value and 0.2 acres of other surface waters. The 0.2 acre impact to other surface waters was to the lake bottom and the shoreline of Lake Doyle where the weir structure was installed. The 0.3 acres of wetland impacts occurred at the upper end of the deepwater marsh where the pipe was installed. The largest wetland impact (1.0 acre) was to the bay swamp. The bay swamp is a shallow body dominated by low hummocks and pools connected inefficiently by shallow braided channels and one acre is filled with a 1-2 foot layer of sediment following swamp channelization. Disturbance plants (e.g., primrose willow, Ludwigia peruvania, and elderberry Sambucus Canadensis) now colonize the sediment plume. Pursuant to the District's elimination and reduction criteria, the applicant must implement practicable design modifications, which would reduce or eliminate adverse impacts to wetlands and other surface waters. A proposed modification, which is not technically capable of being done, is not economically viable, or which adversely affects public safety through endangerment of lives or property is not considered "practicable." The City reduced and/or eliminated the impacts to the lake bottom and shoreline of Lake Doyle and deepwater marsh, to the extent practicable. The impacts were the minimum necessary to install the weir structure and pipe for the system; the weir structure and pipe were carefully installed on the edges of the wetland and surface water systems, resulting in a minimum amount of grading and disturbance. To compensate for the loss of 1.3 acres of wetlands and 0.2 acres of other surface waters, the City proposes to preserve a total of 27.5 acres of wetlands, bay swamp, marsh, and contiguous uplands. Included in this 27.5 acres are 6.4 acres of the west marsh, which are to be restored. The parties stipulated that the mitigation plan would adequately compensate for losses of ecological function (e.g. wildlife habitat and biodiversity, etc.) resulting from the project. Water quality is a concern for the District. Lake Monroe is included on the Florida Department of Environmental Protection's verified list of impaired water bodies for nitrogen, phosphorous, and dissolved oxygen. Water quality data for Lake Monroe indicate the lake has experienced high levels of nitrogen and phosphorous and low levels of dissolved oxygen. Prior to construction of the project, there was no natural outfall from the Lake Theresa Basin to Lake Monroe and therefore no contribution from this basin to nitrogen and phosphorous loadings to Lake Monroe. Lake Colby, Three Island Lakes (a/k/a Lake Sixma), and the Savannah are surface waters within the Lake Theresa Basin for which minimum levels have been adopted pursuant to Florida Administrative Code Chapter 40C-8. The system will operate with the overflow structures closed and a brick and mortar plug in the outfall pipe to prevent water flow from Lake Doyle to Lake Bethel, resulting in no outfall from the Theresa Basin to Lake Monroe. Minimum flows established for surface waters within the Lake Theresa Basin will not be adversely impacted. Under the first part of the secondary impact test, the City must provide reasonable assurance that the secondary impacts from construction, alteration, and intended or reasonable expected use of the project will not adversely affect the functions of adjacent wetlands or surface waters. The system is designed as a low intensity project. As proposed, little activity and maintenance are expected in the project site area. The reasonably expected use of the system will not cause adverse impacts to the functions of the wetlands and other surface waters. None of the wetland areas adjacent to uplands are used by listed species for nesting or denning. In its pre-construction state, the project area did not cause or contribute to state water quality violations. Under the second part of the secondary impact test, the City must provide reasonable assurance that the construction, alteration, and intended or reasonably expected uses of the system will not adversely affect the ecological value of the uplands to aquatic or wetland dependent species for enabling existing nesting or denning by these species. There are no listed threatened or endangered species within the project site area. Under the third part of the secondary impact test, and as part of the public interest test, the District must consider any other relevant activities that are closely linked and causally related to any proposed dredging or filling which will cause impacts to significant historical and archaeological resources. When making this determination, the District is required, by rule, to consult with the Division of Historical Resources. The Division of Historical Resources indicated that no historical or archaeological resources are likely present on the site. No impacts to significant historical and archaeological resources are expected. Under the fourth part of the secondary impact test, the City must demonstrate that certain additional activities and future phases of a project will not result in adverse impacts to the functions of wetlands or water quality violations. The City has submitted to the District preliminary plans for a future phase in which the system would be modified for the purpose of alleviating high water levels within the Lake Theresa Basin when the level in Lake Doyle rises above an elevation of 24.5 feet. Based upon the plans and calculations submitted, the proposed future phase, without additional measures, could result in minor increases in the loadings of nitrogen and phosphorous to Lake Monroe. Lake Monroe is included on the Florida Department of Environmental Protection's verified list of impaired water bodies due to water quality data indicating the lake has experienced high levels of nitrogen and phosphorous, and low levels of dissolved oxygen. Under this potential future phase, there would be an outfall from the Lake Theresa Basin to Lake Monroe. To address the impact on water quality of this potential future phase, the City has submitted a loading reduction plan for nitrogen, phosphorous, and dissolved oxygen. The plan includes compensating treatment to fully offset the potential increased nutrient loadings to Lake Monroe. Specifically, the loading reduction plan includes: Construction and operation of compensating treatment systems to fully offset anticipated increased nutrient loadings to Lake Monroe. Weekly water quality monitoring of the discharge from Lake Doyle for total phosphorous and total nitrogen. A requirement that the overflow structure be closed if the total phosphorous level reaches 0.18 mg/l or higher or the total nitrogen level reaches 1.2 mg/l or higher in any given week and will remain closed until levels fall below those limits. The implementation of these water quality mitigation measures will result in a net improvement of the water quality in Lake Monroe for nitrogen, phosphorous, or dissolved oxygen. The future phase was conceptually evaluated by the District for impacts to wetland functions. The future phase as proposed could result in adverse impacts to wetland functions. Operation of the system with the overflow structures open could impact the bay swamp and deepwater marsh. The City has demonstrated that any adverse impacts could be offset through mitigation. Based upon the information provided by the City and general engineering principles, the system is capable of functioning as proposed. The City of Deltona will be responsible for the operation, maintenance, and repair of the surface waster management system. A local government is an acceptable operation and maintenance entity under District rules. The public interest test has seven criteria. The public interest test requires the District to evaluate only those parts of the project actually located in, on, or over surface waters or wetlands, to determine whether a factor is positive, neutral, or negative, and then to balance these factors against each other. The seven factors are as follows: the public health, safety, or welfare of others; conservation of fish and wildlife and their habitats; fishing, recreational value, and marine productivity; temporary or permanent nature; 5) navigation, water flow, erosion, and shoaling; 6) the current condition and relative value of functions; and 7) historical and archaeological resources. There are no identified environmental hazards or improvements to public health and safety. The District does not consider impacts to property values. To offset any adverse impacts to fish and wildlife and their habitats, the City has proposed mitigation. The areas of the project in, on, or over wetlands do not provide recreational opportunities. Construction and operation of the project located in, on, or over wetlands will be permanent in nature. Construction and operation of the project located in, on, or over wetlands will not cause shoaling, and does not provide navigational opportunities. The mitigation will offset the relative value of functions performed by areas affected by the proposed project. No historical or archaeological resources are likely on the site of the project. The mitigation of the project is located within the same drainage basin as the project and offsets the adverse impacts. The project is not expected to cause unacceptable cumulative impacts.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered granting the City of Deltona's application for an environmental resource permit with the conditions set forth in the Technical Staff Report, and dismissing the Petitions for Formal Administrative Hearing filed by Gary Jensen in Case No. 04-2405, and by Steven E. Larimer, Kathleen Larimer, and Helen Rose Farrow in Case No. 04-3048. DONE AND ENTERED this 27th day of May, 2005, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 27th day of May, 2005. COPIES FURNISHED: George Trovato, Esquire City of Deltona 2345 Providence Boulevard Deltona, Florida 32725 Diana E. Bauer 1324 Tartan Avenue Deltona, Florida 32738 Barbara Ash, Qualified Representative 943 South Dean Circle Deltona, Florida 32738-6801 Phillip Lott 948 North Watt Circle Deltona, Florida Howard Ehmer Nina Ehmer 32738-7919 1081 Anza Court Deltona, Florida 32738 Francell Frei 1080 Peak Circle Deltona, Florida 32738 Bernard T. Patterson Virginia T. Patterson 2518 Sheffield Drive Deltona, Florida 32738 Kealey A. West, Esquire St. Johns River Water Management District 4049 Reid Street Palatka, Florida 32177 J. Christy Wilson, Esquire Wilson, Garber & Small, P.A. 437 North Magnolia Avenue Orlando, Florida 32801 Gloria Benoit 1300 Tartan Avenue Deltona, Florida 32738 Gary Jensen 1298 Tartan Avenue Deltona, Florida 32738 James E. Peake Alicia M. Peake 2442 Weatherford Drive Deltona, Florida 32738 Steven L. Spratt 2492 Weatherford Drive Deltona, Florida 32738 Ted Sullivan 1489 Timbercrest Drive Deltona, Florida 32738 Kirby Green, Executive Director St. Johns River Water Management District 4049 Reid Street Palatka, Florida 32177
The Issue Whether a consumptive use permit for the quantities of water as applied for should be granted.
Findings Of Fact Application No. 7500112 requested water from three (3) wells for the purpose of industrial use. This application is for a new use. The center of withdrawals will be located at Latitude 27 degrees 38' 58" North, Longitude 81 degrees 48' 21" West, in Hardee County, Florida. The application is for the use of not more than 470 million gallons of water per year and not more than 2,592,000 gallons of water during any single day to be withdrawn from the Florida Aquifer. Application received as Exhibit 1. Notice was published in a newspaper of general circulation, to-wit: The Herald Advocate, published weekly in Wauchula, Florida, on August 7 and 14, 1975, pursuant to Section 373.146, Florida Statutes. Notices of said public hearing were duly sent by certified mail as required by law. The affidavit of publication was received without objection and entered into evidence as Exhibit 2. Letters of objection were received from the following: Mr. Joseph F. Smith, Route 1, Box 238, Wauchula, Florida 33273. Mr. Smith states that in his opinion such withdrawal of water will severely damage his property. He is developing a mobile home park on eight (8) acres and is fearful that the amount of water requested in this application will diminish his supply of water for his project. A letter from Mr. and Mrs. A. H. Van Dyck, written on August 16, 1975, Route 2, Box 657, Wauchula, Florida 33873. They are fearful that the large amount of water American Orange Corporation proposes to pump each day will affect their shallow well which provides water for their home. They would like to see some type of agreement whereby American Orange Corporation would be willing to pay for replacement of the well if the corporation should cause their well to go dry. Mr. Stanley H. Beck, Counselor at Law, wrote a letter in behalf of his client, Harold Beck, requesting information as to the applicable statutes and regulations which affect the matter of the consumptive use permit. A telegram was sent by Harold Beck of Suite 1021, Rivergate Plaza, Miami 33131, stating that he objected to the application of American Orange Corporation's withdrawal of water or the reason that it would reduce the property value. The witness for the permittee is Barbara Boatwright, hydrologist, who was duly sworn and agreement was reached on each point enumerated as required by Rule 16J-2.11, Rules of the Southwest Florida Water Management District and Chapter 373, Florida Statutes. The staff hydrologist recommended that the permit be granted with two (2) conditions. One was that each of the wells be metered and two, that the District receive monthly reports from each meter. The applicant has consented.
