Findings Of Fact At all times pertinent to the issues herein, Respondent, Cargill, a Delaware corporation authorized to do business in Florida which owned and operated a phosphate mine near Fort Meade, located in Polk County Florida. Petitioner, Gloria Elder, owns residential property adjoining the Fort Meade Mine on which she maintains an individual water well for domestic and other purposes. The Respondent, District, has the responsibility for regulating the consumption and conservation of ground and surface water within its jurisdictional limits, including the well in question. For a period prior to December, 1990, Cargill had been operating under consumptive use permit No. 202297.04, issued by the District, which provided for average daily withdrawals of 12.0 MGD from wells on its property. In addition to the 12.0 MGD, Cargill also was utilizing an additional 3.3 MGD for mine pit and surficial aquifer dewatering activities which did not have to be reflected in the permit but which were lawful uses. In December, 1990, Cargill submitted its application to renew the existing water use permit with a modification including the 3.3 MGD previously being used but not officially permitted. No additional water would be drawn from the permitted wells as the newly applied for 15.3 MGD was the total of the 12 MGD and 3.3 MGD previously permitted and lawfully used. After reviewing the additional information requested of Cargill pertaining to this application, the District published its Notice of Proposed Agency Action for approval of the permit. The proposed permit authorizes withdrawal of the amount requested in the application, 15.3 MGD, the exact same amount actually withdrawn under the prior permit. As a part of the proposed permit the District imposed two special conditions. These conditions, 12 and 13, require Cargill to conduct its dewatering activities no closer than 1,500 feet to any property boundary, wetlands, or water body that will not be mined or, in the alternative, to mitigate pursuant to conditions 12 and 13 any activities conducted within the 1,500 foot setback. There are no reasonable alternatives to Cargill's request. The mining process in use here utilizes a water wash of gravel-size phosphate ore particles out of accompanying sand and clay. The water used for this purpose is recycled and returned to the washer for reuse. The resulting phosphate ore mix, matrix, is transported with water in slurry form to the refining plant. This system in the standard for phosphate mining in the United States. Once at the plant, the slurry is passed through an amine flotation process where the sand and phosphates are separated. This process requires clean water with a constant Ph balance and temperature which can be retrieved only from deep wells. Even though the permit applied for here calls for an average daily withdrawal of 15.3 MGD, typically the Cargill operation requires about 10.08 MGD from deep wells. This is a relatively standard figure within the industry. Approximately 92 percent of the water used at the site in issue is recycled. However, recycled water is not an acceptable substitute for deep well water because it contains matters which interfere with the ability of the chemical reagents utilized in the process to react with the phosphate rock. Therefore, the quantity sought is necessary and will support a reasonable, complete mining operation at the site. The Cargill operation is accompanied by a strenuous reclamation operation. Land previously mined near the Petitioner's property has been reclaimed, contoured, re-grassed and re-vegetated. This project was completed in 1990. No evidence was introduced showing that Cargill's operation had any adverse effect on the Elders' well. Water samples were taken from that well at the Petitioner's request in May, 1991 in conjunction with the investigation into a previous, unrelated complaint. These samples were submitted to an independent laboratory for analysis which clearly demonstrated that the minerals and other compounds in the water from the Petitioner's well were in amounts well below the detection level for each. Only the iron level appeared elevated, and this might be the result of deterioration of the 18 year old black iron pipe casing in the well. Another possible explanation is the fact that iron is a common compound in that part of the state. In any case, the installation of a water softener would remove the iron, and there is no indication the water would have any unacceptable ecological or environmental impacts in the area either on or off the site. No other residents in the area have complained of water quality problems. Petitioner claims not only that Cargill's operation would demean her water quality but also that its withdrawal will cause a draw down in the water level in her well. This second matter was tested by the District using the McDonald-Haurbaugh MODFLOW model which is well recognized and accepted within the groundwater community. The model was applied to the surficial, intermediate, and upper Floridan aquifers and indicated the draw down at the property boundary would be less than one foot in the surficial aquifer and less than four feet in the intermediate aquifer. The model also showed the draw down at the Petitioner's well would be less than three feet, which is well within the five foot criteria for issuance of a consumptive use permit under the appropriate District rules. This evidence was not contradicted by any evidence of record by Petitioner. All indications are that the water use proposed is both reasonable and beneficial, is consistent with the public interest, and will not interfere with any existing legal use of water.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that WUP Permit No. 202297.05 be renewed as modified to reflect approval of 15.3 MGD average daily withdrawal. Jurisdiction will remain with the Hearing Officer for the limited purpose of evaluating the propriety of an assessment of attorney's fees and costs against the Petitioner and the amount thereof. RECOMMENDED this 29th day of April, 1993, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1993. COPIES FURNISHED: Joseph N. Baron, Esquire 3375-A U.S. Highway 98 South Lakeland, Florida 33803 Rory C. Ryan, Esquire 200 South Orange Avenue Suite 2600 Post office Box 1526 Orlando, Florida 32801 Martin D. Hernandez, Esquire Richard Tschantz, Esquire 2379 Broad Street Brooksville, Florida 34609 Peter G. Hubbell Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
The Issue The issue at this stage of the proceeding is whether jurisdiction should be relinquished to the Southwest Florida Water Management District based upon the withdrawal of Petitions filed herein on behalf of the Petitioners, and the filing of a stipulation and settlement agreement executed on behalf of the Petitioners and Respondents.
Findings Of Fact By Notices of Referral dated June 7, 1989, and filed June 1 6, 1989, the Southwest Florida Water Management District (District) transmitted to the Division of Administrative Hearings (DOAH) certain Petitions filed on behalf of Petitioners which opposed the issuance of a consumptive use permit numbered 208426 by the District to the West Coast Regional Water Supply Authority (Authority). These Petitions were assigned Case Numbers 89-3187 through 89-3189 by DOAH, and were consolidated for all further proceedings. On August 18, 1989, Chilpub, Inc. (Chilpub), filed a Petition to Intervene, which was granted by Order entered on September 6, 1989. On October 20, 1989, Wiregrass Ranch, Inc. (Wiregrass), filed a Petition to Intervene, which was granted by Order entered on October 31, 1989. The Petitions filed on behalf of Chilpub and Wiregrass were filed at DOAH, and specifically sought leave to intervene in Cases Numbered 89-3187 through 89-3189 in order to oppose the issuance of permit number 208426 to the Authority. Following the granting of these Petitions, Chilpub and Wiregrass have participated in this proceeding as Intervenors On or about November 8, 1989, the Authority provided Wiregrass with a copy of the Notice of Proposed Agency Action which is the subject of this proceeding, pursuant to Rule 40D-2.101, Florida Administrative Code. However, subsequent to receiving this Notice of Proposed Agency Action, Wiregrass failed to file with the District any Petition in its own right seeking to initiate a proceeding under Section 120.57(1), Florida Statutes, to challenge the issuance of permit number 208426 to the Authority. Notices of Withdrawal of Petitions for Formal Hearing were filed on behalf of the Petitioners in Cases Numbered 89-3187 through 89-3189 on April 4, 1990, and on that same date, the Petitioners and Respondents filed their Joint Motion to Relinquish Jurisdiction. A copy of the Stipulation and Settlement Agreement executed by the Petitioners and Respondents was filed on April 9, 1990.
Recommendation Based upon the foregoing, it is recommended that the District enter a Final Order dismissing the Petitions filed herein, and issuing permit number 208426 to the Authority. DONE AND ENTERED this 19 day of April, 1990 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 120 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 19 day of April, 1990. COPIES FURNISHED: David L. Smith, Esquire Jeffrey A. Aman, Esquire 712 South Oregon Avenue Tampa, FL 33606 Edward P. de la Parte, Jr., Esquire Barbara B. Levin, Esquire 705 East Kennedy Blvd. Tampa, FL 33602 Bram Canter, Esquire 306 North Monroe Street Tallahassee, FL 32302 Enola T. Brown, Esquire P. O. Box 3350 Tampa, FL 33601-3350 James S. Moody, Jr., Esquire P. O. Box TT Plant City, FL 33564-9040 Peter G. Hubbell Executive Director SWFWMD 2379 Broad Street Brooksville, FL 34609-6899
Findings Of Fact Application No. 76-00408 is for an existing water use from six wells. The application seeks a total average annual withdrawal of 3.298 million gallons per day and a maximum daily withdrawal of 9.801 million gallons per day. The wells will be located in the Peace River basin in Polk County. Ninety-nine percent of the water will be used for industrial purposes and one percent of the water will be used for irrigation purposes. The applied for consumptive use will not violate any of the conditions set forth in Subsection 16J-2.11(2), (3) or (4), Florida Administrative Code. The Southwest Florida Water Management District's staff recommends granting of the subject permit in the amounts requested with the following conditions: That the applicant shall install totalizing flowmeters of the propeller-driven type on all withdrawal points with the exception of the well to be used for agriculture located at , Latitude 27 degrees 45 minutes 39 seconds, Longitude 81 degrees 37 minutes 07 seconds and the fire well located at Latitude 270 54 minutes 39 seconds, Longitude 81 degrees 36 minutes 00 seconds. The applicant shall submit to the district a record of pumpage for each meter installed in (a) above on a quarterly basis beginning January 15, 1977, with the pumpage recorded on a weekly basis.
Recommendation It is hereby RECOMMENDED that a consumptive use permit in accordance with Application No. 76-00408 be issued with the conditions set forth in paragraph 3 above. ENTERED this 13th day of October, 1976, in Tallahassee, Florida. CHRIS H. BENTLEY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Citrus World, Inc. Staff Attorney Post Office Box 1111 Southwest Florida Water Lake Wales, Florida 33853 Management District Post Office Box 457 Brooksville, Florida 33512
The Issue The central issue in this case is whether the Petitioners are entitled to an exemption pursuant to Section 373.406(2), Florida Statutes.
Findings Of Fact Based upon the stipulations of the parties, the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: The District is a public corporation in the state of Florida existing by virtue of Chapter 25270, Laws of Florida 1949, and operating pursuant to Chapter 373, Florida Statutes, and Chapter 40E, Florida Administrative Code, as a multipurpose water management district, with its principal office in West Palm Beach, Florida. The Petitioner, London Creek Associates, is a Florida general partnership with the address 4545 Pleasant Hill Road, Suite 205, Kissimmee, Florida 34759. The Petitioner, Louis Fischer, is a general partner of London Creek Associates who resides on the property which is the subject of this case. The subject property is commonly known as London Creek Ranch. The subject property is located in Sections 1, 6, and 7, Township 28 South, Range 29 East, Polk County, Florida. The subject property is located within the geographic boundaries of the District's jurisdictional territory. The subject property is owned in fee simple by London Creek Associates. At all times material to the allegations of this case, London Creek Associates has been such owner. In October, 1989, acting in his own behalf and on behalf of London Creek Associates, Louis Fischer contracted with a road excavator to build a road through the subject property. The location of the road was selected as the route which would require the least amount of clearing and the crossing of the least amount of water or swamps. That route was to connect an existing right- of-way and was to traverse the subject property ending at or near the residence occupied by Mr. Fischer. The road was approximately two miles long, tied into a preexisting road for a portion of its length, and crossed about 2000 feet of wetlands. Prior to the construction of the road, neither Mr. Fischer nor London Creek Associates nor anyone associated with the construction project conducted any engineering studies regarding the road or the ditching associated with its construction. Prior to the construction of the road, neither Mr. Fischer nor London Creek Associates nor anyone associated with the construction project conducted any hydrologic studies regarding the road or the ditching associated with its construction. Prior to the construction of the road, neither Mr. Fischer nor London Creek Associates nor anyone associated with the construction project conducted any hydraulic studies regarding the road or the ditching associated with its construction. In constructing the road, materials were excavated from along the sides of the route and placed along the roadbed in order to elevate the road above natural grade. As a result, a series of ditches were created along the sides of the road. Additionally, fill material was brought in from off-site and was used to raise the road above the natural grade. Some of the fill material for the road construction was taken from wetland areas located on the subject property. A portion of the road and ditches were constructed through wetlands on the subject property. The construction of the road altered the topography of the subject property by creating a road at an elevated grade above the natural grade. During the construction of the road, a borrow pit in a wetland area was dug. That pit has since been filled. During the construction of the road, wetland areas were cleared in order to align the road. The road was completed in March, 1990. Petitioners, Louis Fischer and/or London Creek Associates, are responsible for all acts associated with the construction of the road. Prior to the construction of the road across Petitioner's property, neither Louis Fischer nor London Creek Associates applied for, or received, a surface water management permit from the District. On March 20, 1990, the District issued a notice of violation to Louis Fischer regarding the subject road. On August 6, 1990, the District issued an administrative complaint and order 90-29 regarding the subject road. On August 23, 1990, pursuant to the notice of rights attached to order 90-29, London Creek Associates filed a petition pursuant to Section 120.57, Florida Statutes, objecting to the administrative complaint and requested a formal hearing. London Creek Associates' position has been that it is exempt from permitting by virtue of Section 373.406(2), Florida Statutes, which grants agricultural exemptions. On February 25, 1991, the FOTH were granted leave to intervene in order to participate in these proceedings. Certain "works" constructed by London Creek Associates on the subject property are hydrologically connected to wetlands. The road which is at issue in this case is between 12 and 14 feet wide and is elevated above natural grade from 2 to 3 feet. Exact measurements of the road's elevation have not been performed. However, it is sufficient to say that the road will not likely become submerged by normal rainfall events. Three 36 inch concrete culverts, two 12 inch corrugated pipe culverts, and one 18 inch corrugated pipe culvert have been installed to provide drainage under the road. These culverts allow water to overflow ditches from one side of the road to the other side of the road. Thus, the road only temporarily dams water flow. Louis Fischer is the managing partner of London Creek Associates and as such controls the day-to-day operations of that partnership. Mr. Fischer manages London Creek Ranch and oversees its cattle and timber enterprises. Prior to the construction of the road and, in anticipation of future timber cuts, London Creek Ranch has engaged in silviculture activities on the subject property. The road grade and construction will assure that timber vehicles will have access to the property and will be able to remove large loads without fear of impasse. It is expected that the partnership will continue to derive a portion of its income from timber as it has in the past. Prior to the construction of the road and, in anticipation of future efforts, London Creek Ranch has been used for cattle grazing. Cattle grazing leases have generated income to the partnership and it is expected that they will continue to do so in the future. The road grade and construction will assure that cattle trailers will have access to the property during all seasons. At all times material to the allegations of this case, London Creek Ranch has received an agricultural use classification from the Polk County Property Appraiser's Office. That classification entitles the subject property to be assessed ad valorem taxes as an agricultural concern. At all times material to this case, the subject property has been used for agricultural and silvicultural purposes. No other use, inconsistent with agricultural and silvicultural use, has been proposed for the subject parcel. Residences occupied by Mr. Fischer and the ranch foreman are consistent with its agricultural use. The construction of the road which is at issue will assure that the agricultural and silvicultural activities of the Petitioners will not be foiled by inadequate access. The road at issue is consistent with the practice of the uses to which it is being employed. While it may be superior to some "cattle trails," the road is not so improved as to suggest its use is inconsistent with its intended utilization. Further, the construction of the road was not for the sole or predominant purpose of impounding or obstructing surface waters. Surface waters are only temporarily impounded or obstructed by the road. The culverts and ditching associated with the road operate to maintain the natural surface water flows through the area. FOTH is a Florida corporation whose members hunt, fish, and recreate on the properties adjacent to the London Creek Ranch. The FOTH membership is concerned about the preservation of the London Creek areas and oppose development of those properties. FOTH's incorporation and its opposition to the road constructed by the Petitioners coincided with one another. The District has promulgated no rules or has adopted no written policies interpreting Section 373.406(2), Florida Statutes.
Recommendation Based on the foregoing, it is RECOMMENDED: That the South Florida Water Management District enter a final order granting the Petitioners' exemption pursuant to Section 373.406(2), Florida Statutes. DONE and ENTERED this 23rd day of October, 1991, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1991. APPENDIX TO RECOMMENDED ORDER RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONERS: The first sentence of paragraph 1 is accepted; the remainder is rejected as irrelevant or contrary to the weight of the evidence. Paragraphs 2 through 5 are accepted. Paragraph 6 is rejected as it does not make sense. Paragraphs 7 through 32 are accepted. With the deletion of the words "guaranteed legal" which are irrelevant, Paragraph 33 is accepted. Paragraph 34 is rejected as irrelevant. The Petitioners or any entity claiming an exemption pursuant to Section 373.406(2), Florida Statutes, are not required to show that the access claimed is the only access to the property or that another access is less desirable. With the deletion of the word "sole" paragraph 35 is accepted. Paragraphs 36 through 42 are accepted. Paragraph 43 is rejected as irrelevant. Paragraph 44 is accepted. Paragraphs 45 and 46, including its subparts, are accepted. Paragraph 47 is rejected as argumentative and irrelevant. Paragraph 48 is rejected as argumentative or contrary to the weight of the evidence. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DISTRICT: Paragraphs 1 through 5 are accepted. With the deletion of the word "fill" as it is used before the word "road," paragraphs 6 through 11 are accepted. The District has identified the road in this case as a "fill road" but it is for the purposes of all applicable statutes or rules or policies articulated herein a "road." It is not disputed that fill materials were placed on the roadbed to elevate the road surface above the natural grade. Semantics aside, the road is a road. "Fill" is rejected as irrelevant or contrary to the law applicable to this case. Paragraph 12 is rejected as irrelevant. With the deletion of "fill" (see comment above), paragraph 13 is accepted. Paragraph 14 is rejected as irrelevant or argumentative. Paragraph 15 is rejected as irrelevant. Paragraph 16 is rejected as irrelevant. Paragraph 17 is rejected as irrelevant. Paragraph 18 is accepted with the deletion of the word "fill" as indicated above. Paragraph 19 is rejected as comment, recitation of testimony or irrelevant. Paragraph 20 is rejected as irrelevant or argumentative. Paragraph 21 is rejected as argument, recitation of testimony or contrary to the weight of the evidence. Paragraph 22 is rejected as recitation of testimony or contrary to the weight of the evidence. With regard to paragraph 23, it is accepted that neither Mr. Fischer nor London Creek Associates owns cattle and that their cattle efforts stem from allowing others to graze on the ranch lands; otherwise rejected as argumentative, irrelevant, or contrary to the weight of the credible evidence. With regard to paragraph 24, it is accepted that Petitioners have received revenues from cattle and timber efforts otherwise the paragraph is rejected as irrelevant. The first sentence of paragraph 25 is rejected as irrelevant. The second sentence of paragraph 25 is accepted. The remainder of the paragraph is rejected as contrary to the weight of the evidence. Paragraph 26 is accepted. Paragraph 27 is rejected as irrelevant. Paragraph 28 is accepted with the deletion of the word "fill." Paragraph 29 is accepted. Paragraph 30 is accepted. Paragraph 31 is accepted. Paragraph 32 is rejected as irrelevant. With the deletion of the word "fill," paragraphs 33 through 35 are accepted. The first sentence of paragraph 36 is rejected as irreevant. The remainder of the paragraph is rejected as contrary to the weight of the evidence. Paragraph 37 is accepted. Paragraph 38 is rejected as argumentative or irrelevant or contrary to the weight of the evidence. Paragraph 39 is rejected as irrelevant or argumentative. Paragraph 40 is rejected as recitation of testimony or irrelevant. Paragraph 41 is rejected as recitation of testimony. Paragraph 42 is rejected as contrary to the weight of the evidence. The road in dispute may be more passable than "cattle trails" or less improved roads but its use is not inconsistent with agricultural and silvicultural purposes. Paragraph 43 is rejected as irrelevant or contrary to the weight of credible evidence. Paragraph 44 is rejected as irrelevant. Paragraph 45 is rejected as irrelevant. It is accepted that the road in dispute provides access to both Mr. Fischer's and his foreman's homes. That it also provides access for bona fide agricultural and silvicultural purposes is why it does not require a permit. Paragraph 46 is accepted. With the exception of the last sentence, paragraph 47 is accepted. The last sentence is rejected as contrary to the weight of the evidence. Paragraph 48 is rejected as argumentative or irrelevant. It is not disputed that the road is above the natural grade. Paragraph 49 is accepted with the deletion of the word "fill." Paragraph 50 is rejected as argumentative or attempt to recite testimony. In the alternative the paragraph is rejected as irrelevant as to whether the road has been used for timber harvesting since future harvesting will require the road. Paragraph 51 is rejected as irrelevant. The issue in this case is whether the road was constructed for the sole or predominant purpose of impounding or obstructing surface waters. Paragraph 52 is accepted. Paragraph 53 is rejected as irrelevant or a statement of fact contrary to the weight of the credible evidence presented. It has not been disputed, however, that the Petitioners sought to construct a road that would be passable during all seasons for the purposes expressed herein. Paragraph 54 is rejected as irrelevant or contrary to the weight of the evidence or a recitation of testimony not fact. Paragraph 55 is accepted to the extent that it suggests surface waters flowed across this parcel in the areas where the road was constructed and that further the culverts assure that the flow remains the same as prior to the road. Otherwise rejected as irrelevant or recitation of testimony. Paragraph 56 is accepted. Paragraph 57 is rejected as argumentative, comment on testimony or irrelevant; see comment re: paragraph 55. Paragraph 58 is rejected as contrary to the weight of the credible evidence. With regard to paragraph 59 it is accepted that Mr. Ady correctly described the location and size/number of culverts; otherwise, rejected as irrelevant. Paragraph 60 is rejected as contrary to the weight of the evidence. Paragraph 61 is accepted. Paragraph 62 is rejected as argument or contrary to the weight of the evidence or irrelevant given the promulgated rules, policies and applicable statutes in effect at the times material to this case. Paragraph 63 is rejected as comment, recitation of testimony or contrary to the weight of the evidence. Paragraph 64 is rejected as contrary to the weight of the evidence or recitation of testimony. Paragraph 65 is rejected as contrary to the weight of the evidence and argumentative. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE INTERVENOR: The findings of fact submitted by FOTH mirror those submitted by the District and have been addressed above. Those paragraphs not previously considered are identified below. The first sentence of paragraph 45 is accepted; the remainder is rejected as irrelevant. Paragraph 46 is accepted. Paragraph 47 is accepted. Paragraph 48 is rejected as contrary to the weight of the evidence. Paragraph 49 is rejected as contrary to the weight of the evidence. Paragraph 50 is accepted. Paragraphs 51 and 52 are accepted. Paragraph 53 is rejected as argumentative or irrelevant. COPIES FURNISHED: Tilford Creel Executive Director South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416 John J. Fumero Associate Attorney South Florida Water Management District 3303 Gun Club Road Post Office Box 24680 West Palm Beach, Florida 33416-4680 Joseph W. Landers, Jr. Landers & Parsons Post Office Box 271 Tallahassee, Florida 32302 Carl W. Hartley, Jr. HARTLEY & WALL Suite 2810, Sun Bank Tower 200 S. Orange Avenue Post Office Box 2168 Orlando, Florida 32802
Findings Of Fact Application No. 76-00336 is a request by the City of Plant City, Florida, for a new use from a single well at a location approximately 31 miles east of downtown Plant City. The well would be located in the Hillsborough Basin. The average annual daily withdrawal sought is 2.0 million gallons with a maximum daily withdrawal sought being 3.5 million gallons. The amount requested is consonant with the needs of the city and contains provision for some growth. The Plant City service area encompasses 8,600 acres. The sought for consumptive use will not significantly induce salt water intrusion. The consumptive use sought may interfere with existing legal uses. There are a number of private wells, perhaps 50-60, in the area. Most of these wells are in a subdivision known as Pleasant Acres. These wells will experience drawdowns of up to 4.3 feet which may cause the pump to break suction during the dry season or line pressure to drop. Further, the average drawdown at the property boundary created by the sought for consumptive use will be approximately 6.3 feet. The boundary of the well site is approximately 150 feet from the well. The well could have been located so that the average drawdown at the property boundary would not have been in excess of 5 feet. The well is already in existence, having been constructed over one year ago. The primary purpose of the well is for better fire protection and additional capacity for domestic use and growth in Plant City. The residents of Pleasant Acres are very concerned about the effect of the proposed well on their existing wells. The Southwest Florida Water Management District's staff recommends granting of the permit with the following conditions: That the City of Plant City shall install a totalizing flowmeter on the well. That the City of Plant City shall submit monthly pumpages on a quarterly basis to the following address: Chief, Technical Information Service, SWFWMD, 50560 U.S. 41 South, Brooksville, Florida. That upon completion of construction of all pumping facilities the City of Plant City will pump the permitted facility during the third week of the following May at the maximum rate of 3.5 million gallons per day for at least three days. Private well owners within a radius of mile will be notified prior to the initiation of the tests. Complaints will be handled by the city according to stipulation D. The City of Plant City shall investigate under the direction of the city engineer, all complaints by owners of private wells which are within a mile radius of the permitted facility and which relate to loss of water. Further, the city shall repair or replace at no cost to the owner, those private wells and/or the associated pumping facilities which are substantially affected by the city's with- drawals and which can be attributed to 10 feet or less of drawdown. With the exception of those matters set forth above pertaining to Subsection 16J-2.11(4)(b), F.A.C., none of the matters set forth in Subsection 16J-2.11(2), (3) or (4), F.A.C., exist, with regard to this application so as to require its denial.
Recommendation It is recommended that Application No. 76-00336, submitted by the City of Plant City, Florida, be granted in the amount of 2 million gallons per day average annual withdrawal and 3.5 million gallons per day maximum daily withdrawal, provided that the four conditions listed in paragraph 8, above, be placed upon the permit. ENTERED this 26th day of May, 1976, in Tallahassee, Florida. CHRIS H. BENTLEY, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Staff Attorney Southwest Florida Water Management District P. O. Box 457 Brooksville, Florida 33512 Salvador D. Nabong City Engineer City of Plant City P. O. Drawer C Plant City, Florida 33566 Paul Buckman, Esquire City Attorney City of Plant City City Hall Plant City, Florida 33566
The Issue Whether a consumptive use permit for the quantities of water requested in the application should be granted.
Findings Of Fact Application 7500137 seeks an average daily withdrawal of 2.4 million gallons of water with maximum daily withdrawal not more than 2.88 million gallons from an existing well in order to process phosphate and reclaim land. This is an existing use for mining operations located southwest of Lakeland, Florida, on land consisting of 1531 acres. Notice was published in a newspaper of general circulation, to wit: The Lakeland Ledger, on November 11 & 18, 1975, pursuant to Section 373.146, Florida Statutes. The application and affidavit of publication were admitted into evidence without objection as Composite Exhibit 1, together with correspondence from James R. Brown, Vice President, Dagus Engineers, Inc., dated November 19, 1975 to the Southwest Florida Water Management District. No objections were received by the Water Management District as to the application. Mr. George Szell, hydrologist of the Water Management District testified that the application met the conditions for a consumptive use permit as set forth in Chapter 16J-2.11, Florida Administrative Code, except that the quantity of water requested to be withdrawn is 41.06 per cent over the maximum average daily withdrawal permitted under the water crop theory as set forth in Section 16J-2.11(3), F.A.C. However, the Water Management District witness recommended waiver of that provision since the mining operations will be concluded in several years and thereafter the water table and hydrologic conditions will return to normal. The Water District staff recommended approval of the application with the condition that a meter be installed on the well and that the applicant be required to take monthly readings thereof and submit quarterly reports of the readings to the District. The applicant's representative agreed to these conditions at the hearing.
Recommendation It is recommended that Application No. 7500137 submitted by Poseidon Mines, Inc., for a consumptive water use permit be granted on the condition that a meter be installed on the applicant's well and that monthly readings be taken and submitted quarterly by the applicant to the Southwest Florida Water Management District. It is further recommended that the Board of Governors of the Southwest Florida Water Management District, pursuant to Rule 16J-2.11(5), for good cause, grant an exception to the provisions of Rule 16J-2.11(3), as being consistent with the public interest. DONE and ENTERED this 19th day of January, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: J.T. Ahern, Staff Attorney Southwest Florida Water Management District P.O. Box 457 Brooksville, Florida 33512 Poseidon Mines, Inc. P.O. Box 5172 Bartow, Florida
The Issue The issues to be resolved in this proceeding concern whether the Petitioners should obtain an amendment to a development order which would allow multi-family residential development on the property of the Petitioners, presently designated as commercial property, on St. George Island, Franklin County, Florida. Included within that general issue are questions involving whether the proposed amendment is a "substantial deviation" from that 1977 development order, what vested rights, if any, the Petitioners have to develop their property, and whether the development, as proposed and as delineated in the testimony and evidence, is consistent with the development order and any vested rights thus acquired by the Petitioners.
Findings Of Fact A development order (DO) was approved by the County on September 10, 1977 providing for a DRI for approximately 1,200 acres of property on St. George Island in Franklin County, Florida. The 1,200 acres to which the 1977 DO relates is not contiguous. It is separated into two parcels, one of which is located on the east end of St. George Island, adjacent to the state park, which contains 33-1/3 acres designated as "commercial". It is identified as the "Sunset Beach Commercial Area" in that 1977 DO. That same area is also referred to as Three Hundred Ocean Mile, Gorrie Ocean Mile, or Sunset Beach. The remaining portion of the 1,200 acres is located between 12th Street West and the Bob Sikes Cut, and is generally referred to as the "Plantation". The Plantation DRI property is divided by the 1977 DO into both residential and commercial areas. There are two designated commercial areas in the Plantation property, one of which is adjacent to Bob Sikes Cut and is approximately 100 acres in size. The other commercial area is approximately 150 acres in area and is referred to as the "Airport Commercial Area" or the "Nick's Hole Commercial Area". These areas are collectively referred to in the 1977 DO as the "Plantation Commercial Areas". The remainder of the Plantation DRI property consists of 900 to 1,000 platted, residential lots designated as "Residential Areas". Approximately 250 of these lots are already developed with single- family residences. The Petitioners are successor-in-interest to a portion of the Plantation property, owning approximately 58 acres within the Airport or Nick's Hole Commercial Area. This property is hereinafter described as "Petitioners' Property" and is depicted in Exhibits 9, 17, 18 and 19 adduced by the Petitioners. The 1977 DO limits the total commercial area which can be developed to not more than 200 acres even though a larger portion is commercially designated. Thus, the development of the 58 acres at issue in this proceeding will not result in the limit in the 1977 DO being exceeded. The 1977 DO authorizes commercial development within the Plantation Commercial Areas, shown by page 5 of the Petitioners' Exhibit 2 in evidence. The 1977 DO thus provides that the commercial areas shall include one or more high quality resort hotels and motels, with affiliated uses such as tourist shops, restaurants, recreational amenities and similar activities. The 1977 DO provides that because specific plans for the two areas were indefinite at the time of the enactment of the 1977 DO, those areas would not be re-zoned at that time; but re-zoning of the areas would be granted upon final approval of the plans by the Respondent, "which approval shall not be unreasonably withheld". "Condominiums and multi-family residential structures shall not be allowed in any of the areas shown by Exhibit "A" without the prior consent of the Respondent. Before development is commenced in the commercial areas, plans and specifications for the site clearing and construction shall be submitted to the Respondent for review and approval. Upon such approval, the specific area in question shall be re-zoned to allow the requested land use." The 1977 DO has been amended several times. Two of the amendments enacted in 1985 and 1987 specifically authorize condominium and multi-family residential development within the Plantation Commercial Areas. The Franklin County zoning ordinance, Ordinance No. 75-7 (Zoning Ordinance), was in effect on September 20, 1977, when the 1977 DO was enacted. The Ordinance authorized condominium and multi-family residential development as part of the "commercial designation" applicable to St. George Island in the Plantation Commercial Areas. A "Tourist Commercial District" is established in Section 630 of the Zoning Ordinance, and this land use is specifically applicable to the islands within Franklin County. Section 631 of the Ordinance includes within the "Principal Permitted Uses" hotel, motel, restaurant and gift shops and all uses within R-2 multi-family districts. Section 520 of the Zoning Ordinance, "Multi-Family Residential District", sets forth principal permitted uses, which include "multiple dwellings including townhouses, apartment houses . . .". The Petitioners acquired their 58-acre parcel in 1991 after the entry of the 1977 DO and the two amendments referenced above. Exhibit "D" to the 1977 DO is depicted in Petitioners' Exhibit 3 in evidence. This exhibit, which includes the Petitioners' property, has been recorded in the Franklin County Public Records since 1977. The exhibit indicates the intensity of the contemplated development approved for the Petitioners' property. The portion south of Leisure Lane reflects the following densities: 525 to 675 hotel rooms; food and beverage outlets and other amenities associated with those hotel rooms; 65,000 to 82,000 square feet of resort shops and commercial business use; and 685 surface parking spaces (in addition to the parking spaces which would be located below the hotel). Those densities were calculated based upon the coverages depicted on "Exhibit D". The figures do not include that portion of the Petitioners' property north of Leisure Lane, which was also approved for commercial development. The Proposed Development "Resort Village", the proposed development, would consist of residential and multi-family development, hotel and inn and related commercial uses, such as retail shops and restaurants. Recreational amenities would be provided, such as a club house, swimming pool, tennis courts, racquetball courts and exercise facilities. The amenities would be available to surrounding property owners, as well. St. George Island is a resort vacation area, and the proposed development in Resort Village would be compatible with those uses. Approximately 150 of the 250 developed homes in the Plantation are in rental programs. The Franklin County Comprehensive Plan and its land use goals, objectives and policies includes a "mixed-use residential" land use category, limited to developments such as DRI's. That category includes recreational, commercial, retail, office, and hotel and motel development, as well as multi- family residential uses. That category is very similar to the description of the Plantation Commercial Areas contained in the 1977 DO. Resort Village is the only parcel remaining in the Plantation area available for this type of development. The Petitioners in the St. George Plantation Owners Association, Inc. entered into an agreement in October, 1992 providing for certain density and other restrictions on the Petitioners' property. These restrictions include density limitations of 3.9 residential units per gross acre; 19.5 hotel units per gross acre; and 12,000 square feet of miscellaneous commercial development per gross acre. The Petitioners also agreed not to exceed a 35-foot height limitation which was less than that previously approved by the County in the Plantation Commercial Areas. The development restrictions agreed to by the Petitioners are more stringent than those previously approved for development in the Plantation Commercial Areas and allowed-for by the County zoning code in effect in 1977 or currently authorized and allowed in commercial and multi-family developments in the County. The Petitioners have also agreed to limit the total impervious surface area to no more than 40 percent; to maintain a 50-foot buffer adjacent to wetlands; to maintain a large portion of the 58 acres in its naturally- vegetated state and not to seek permission to develop any of the DEP "jurisdictional wetlands" adjacent to Apalachicola Bay. Thus, all development will be on uplands without any permitting sought or development in wetlands and waters of the State. Character of Prior Development Approvals In the 1985 amendment to the 1977 DO, the County approved the mixed- use development of 352 multi-family units on 76.5 acres and a hotel conference center of 386 hotel units on 11 acres. The 1987 amendment approved by the County re-affirms a permitted development of the 352 multi-family units on 76.5 acres, and includes a resort-convention center/hotel with 250 units, a marina/motel with 40 units, and a "harbor house", consisting of 60 units, as well as the other authorized development. Additionally, the County approved, and there was constructed in the early 1980's, two projects in the commercial district in the center of the Island: The Villas of St. George, with a density of approximately 16.6 multi-family units per acre, and the Buccaneer Inn, with a density of approximately 44 hotel/motel units per acre. On September 2, 1981, the County approved a mixed-use development in the Sunset Beach Commercial Area in close proximity to the Bay, consisting of 252 multi-family residential units and 150 motel units, a density of nine multi-family units per acre, and 25 hotel/motel units per acre. Additionally, the Respondent recently authorized single-family residential units in this area. The Buccaneer Inn, the Villas of St. George, and the Sunset Beach development all have more dense development than Resort Village would have, with a higher percentage of impervious surface, leaving very little natural vegetation. The Respondent recently approved and took an active role in encouraging and facilitating residential developments served by aerobic septic systems in the commercial district in the center of the Island. It did so by granting a variance for setbacks and an easement for waste water purposes. The densities for these developments are 4.3 residential units per acre, greater than the 3.9 residential units per acre the Petitioners have voluntarily imposed as a restriction on their property. Reliance on Prior Approvals The Petitioners, prior to acquiring the property, studied and researched the public records of Franklin County and other documents and did considerable investigation to become familiar with the 1977 DO, as well as the 1985 and 1987 amendments and what was allowed pursuant to those amendments. Additionally, the Petitioners had conversations with Alan Pierce, the Franklin County Planner, concerning the development of their property both prior to and after purchasing the property. In one conversation with Mr. Pierce prior to purchase, the Petitioners were advised by Mr. Pierce that in order to develop the Resort Village concept, the Petitioners would be better advised to acquire "commercially-designated" property within the Plantation, instead of trying to get single-family lots re-zoned. There is no evidence that the Petitioners were placed on notice by any documents or communication from Franklin County officials that they would not be able to develop the Resort Village proposal on their property. After purchasing the property, the Petitioners continued communicating with Mr. Pierce and other Franklin County officials. Mr. Pierce was aware that the Petitioners were expending considerable resources in attempting to secure the necessary government permits and approvals, as well as doing market research, real estate development planning, and other activities related to the parcel in question. The Petitioners expended in excess of $500,000.00, as a result of their efforts in the preparation for development of the Resort Village, including fees to engineers, attorneys, architects, and various environmental specialists and consultants, as of December 1993. Development Review Process Under the 1977 Development Order The 1977 DO provides that it "is consistent with the local land development regulations of Franklin County, Florida." The DO contains "conceptual land plans", which are incorporated and made a part of the DO. The conceptual land plans are contained in "Exhibits A-F" to the 1977 DO. Two of the exhibits, "Exhibit A" and "Exhibit D", contain the conceptual plans for the development of the Petitioners' Property. The 1977 DO does not expressly set forth the specific densities for development of the Petitioner's Property, but the intensity of the contemplated development for a portion of the Petitioner's Property is shown on "Exhibit B" to the 1977 DO, as further described above. If the Petitioners had not sought an amendment to the 1977 DO to include multi-family use, they would have simply submitted a specific site plan to the Respondent "for review and approval". Upon approval of the site plan, the Respondent would automatically re-zone the property as applicable. The automatic re-zoning of the property was re-confirmed at the Respondent's June 8, 1981 board meeting. See, Petitioners' Exhibit 15, page 3, in evidence. If at the time the site plans are approved, state or federal approvals are still necessary, the Respondent is required to cooperate with the Petitioners in obtaining those approvals, as long as substantial, adverse data is not developed with regard to environmental damage and as long as cooperation does not require the expenditures of monies by the County. Since the Petitioner sought an amendment to the 1977 DO, pursuant to Section 380.06(19), Florida Statutes, to allow multi-family uses, the Petitioners address these issues as part of the Chapter 380, Florida Statutes, process, prior to submitting a detailed site plan. Franklin County's Development Review Process In order for commercial development to be effective in Franklin County, a site plan must be submitted for review and approval to the Planning and Zoning Commission. The Commission checks to insure compliance with setback requirements, parking requirements, impervious surface area, and other criteria set forth in Franklin County's ordinances. Information is also provided in the site plan approval process with regard to the treatment of waste water and the treatment and detention of storm water. After site plan approval, an applicant must next obtain any necessary waste water permits from either HRS or DEP, depending on the size of the project. A storm water permit from DEP must be obtained and a certificate from the utility system that potable water is available for the development. After these permits are obtained, an applicant must submit building plans and a building permit can then be issued. Franklin County has not adopted a process whereby it independently studies or evaluates the impact of the DRI. Franklin County relies upon the state permitting and regulatory process for that data. Waste Water and Storm Water The 1977 DO specifically addresses "sewage treatment and drainage control" and requires assurance that the planned development "will not cause pollution of Apalachicola Bay or other environmental damage". Under the 1977 DO, waste water treatment should be addressed at the site plan stage, which can occur before any or all of the permitting processes begin. The Petitioners presented considerable testimony regarding both the pending waste water treatment permit and the manner in which storm water would be addressed. Waste water will be treated by an advanced waste water treatment system (AWT). It will be a municipal-type facility with Class I reliability and will be of a higher quality than any similar facility in Franklin County. The AWT plant provides the highest level of treatment available for domestic waste water. It will remove approximately 93 percent of the nitrogen content, 91 percent of the phosphorus, and 97 percent of the bio-chemical oxygen demand in the waste water effluent. Contrastingly, aerobic septic systems remove typically 13 percent, 0 percent, and 50 percent of the nitrogen, phosphorus, and bio-chemical oxygen demand, respectively. The Petitioners propose to build the AWT plant in 30,000-gallon phases. They will install aerobic septic systems during the first years of development, until enough waste water is generated to efficiently operate the AWT plant. This will require a flow of approximately 5,000 gallons per day. The Petitioners have agreed to start construction on the AWT plant once 5,000 gallons of waste water is being generated and to disconnect all aerobic systems, once a permit to operate the treatment plant is issued by DEP. The Petitioners have also agreed not to exceed 10,000 gallons of flow at any time on the aerobic system. In order to dispose of treated effluent, the Petitioners propose to use three sub-surface absorption cells. These will be used on a rotating basis so as to minimize the amount of effluent which will percolate to the ground water at each location. There is considerable testimony regarding the importance of Nick's Hole to the Apalachicola Bay ecosystem. The Petitioners' property does not actually border Nick's Hole, but is in close proximity to it. The relative location of Nick's Hole and the Petitioners' property is depicted on Exhibit 9 in evidence. Unrefuted testimony by the Petitioners' expert witnesses, Gary Volenec and Steve Leitman, established, through their ground water study, that none of the waste water from the Resort Village development would migrate to Nick's Hole or to the marshes adjacent to it. Twenty percent of the ground water, at most, might eventually migrate toward the marsh and the Pelican Point Bay area, east of the airport and north of the Petitioners' property, with at least 80-90 percent of the treated waste water migrating toward the Gulf, in accordance with the ground water gradient in the area of the Petitioners' property. These studies did not require a specific site plan in order to be conducted accurately. Rather, they depend solely on the location of the absorption fields, as proposed, and the flow of the ground water, as revealed by the ground water study. It must be remembered that DEP, through its permitting process, has ultimate control over the specific location of the absorption fields, their configuration, construction, and manner of use and operation, as is true of the waste water plant itself. After the waste water plant is constructed, the underground water, as part of the operating permit of the plant, will be constantly monitored, as will the operation of the plant. If problems arise, constituting adverse effect or the potential thereof on the ground water or surrounding surface waters, which cannot be immediately remedied, the DEP has the authority to shut the plant down. The volume of water flowing from the Apalachicola River into the Bay is approximately a minimum of 16 billion gallons per day. The average daily rainfall on Pelican Point Bay and the surrounding wetlands is 296,000 gallons, if apportioned on a daily basis. The amount of water flowing in and out of the Pelican Point Bay/Nick's Hole area with each tidal exchange is approximately 72 million gallons. If it be assumed that the maximum amount of treated waste water, which would be 120,000 gallons per day if development were effected without the proposed multi-family amendment (which would reduce that maximum amount to 90,000 gallons per day) and the maximum percentage of migration to Apalachicola Bay (20 percent) occurred, the maximum amount of water eventually getting into Apalachicola Bay after treatment would be 24,000 gallons per day. However, if the multi-family amendment were adopted and the Petitioners' proposed development proceeded accordingly, the maximum volume of water generated from Resort Village would be reduced to 18,000 gallons per day (90,000 GPD x 20 percent = 18,000). The Intervenor expressed much concern that the sewage treatment plant would be located in a flood-prone area. This is not relevant concerning the addition of multi-family development to the permitted development on the property since, even if no amendment were sought and development proceeded as presently allowed under the 1977 DO, as amended, a waste water treatment plant treating as much as 120,000 gallons per day would be necessary. In any event, however, the Petitioners would be required to address such flooding concerns as part of the permitting process regarding waste water and storm water permits sought from the DEP at the appropriate time. Further, the critical components of the plant, including absorption cells, are required by the DEP to be well- elevated so that they can withstand the most severe storm events. The Petitioners' expert witness, Randall Armstrong, testified as to how Resort Village's storm water plan would be designated and permitted. Since the Petitioners' property is on Apalachicola Bay, a Class II designated water, as well as an outstanding Florida water, the DEP has specific storm water requirements which have to be met before a permit can be issued. Although the detail or design for the storm water system is dependent on formal site plans, it is represented by the Petitioners that all storm waters will be captured, allowed to percolate into the ground, and that no storm water will be accumulated and discharged into the waters of the Bay or the Gulf. Ultimate approval of the amendment by Final Order in this proceeding should be conditioned on a binding agreement between the parties concerned to that effect. However, for areas that will remain in their natural state, even after development on the property, the flow patterns for storm water will not change. The Respondent and the Intervenor are also concerned that storm water, under certain conditions, might flow from the Petitioners' property across the airport and into the marshes adjacent to Nick's Hole, even in the present, undeveloped condition. If that, in fact, occurs, the development of Resort Village will not alter that, for areas which remain in their natural state. If development occurs near or adjacent to the airport, any storm water will be captured and treated accordingly under the Petitioners' voluntary proposal, in any event. According to testimony in the record, DEP, in both its waste water and storm water permitting and regulatory processes, is keenly aware and sensitive to the location of the Petitioners' property and the importance of activity on that property to the health of Apalachicola Bay. The Petitioners' will not be able to get a building permit to develop the property until the Petitioners have both the waste water and storm water permits. The granting of either of those permits will require extensive scientific investigation and demonstration of reasonable assurances that the various environmental concerns, in terms of water quality, the public interest and cumulative impacts of such projects, as provided in the pertinent provisions of Chapter 403, Florida Statutes, and attendant rules, will not be adversely affected. In any event, the addition of multi-family-type development will have no adverse effect on the issues concerning sewage and waste water treatment and will actually result in a reduction in the conceivable, maximum daily flows versus the development, in the commercial sense, already permitted under the 1977 DO, as amended. Flooding Issues The Respondent and the Intervenor also expressed concerns about potential flooding at the St. George Island site in question. While Richard Deadman indicated in his testimony that DEP had concerns regarding development of the Petitioners' property, such as flooding on St. George Island, Mr. Deadman stated that his concerns were passed on to others in DEP and would be taken into account in the relevant permitting processes. The Respondent and the Intervenor also expressed concerns regarding the impact of the development on hurricane evacuation and traffic densities. The Respondent and the Intervenor's witness, Mike Donovan from the ARPC, testified that the counsel's study showed that Resort Village would have no significant impact on the regional road system, which includes the bridge from the mainland to St. George Island. Potable Water Issues The Respondent and the Intervenor also were concerned regarding the availability of potable water. Based upon the testimony of the Intervenor's witness, John Kintz from DEP, the capacity of potable water for the utility on St. George Island is very near, if not already at, capacity. Clearly, for any additional development to occur within the area served by the St. George Island water utility, whether multi-family, single-family, or commercial development, the capacity of the utility will have to be increased. If not, water hookups will not be available; and, therefore, building permits cannot be granted in Franklin County. The water utility does have an application pending at the NWFWMD to increase its water supply capacity. Fees paid by the Resort Village to the utility will assist it in providing for additional water capacity expansion. The Petitioners already have purchased 15,000 gallons capacity per day from the utility which is enough potable water to serve the project in the first several years of development. The Petitioners will continue purchasing potable water capacity on an as-needed basis as long as it is available and when it becomes available. In any event, if potable water is not adequately available, building permits cannot be granted and the development cannot proceed. In terms of the lower densities, projected sewage flows, restrictions on parking and impervious surfaces, and the other factors delineated in the above Findings of Fact, the Resort Village development will have less adverse impact than the development already allowed by the 1977 DO, as amended, for the site in question. Thus, the Resort Village, as proposed by the Petitioners will not constitute a substantial deviation from the types of development activities permitted by that 1977 DO, as amended. Although concerns were expressed by a number of witnesses, and by the Respondent and the Intervenor, concerning the potential pollution of Apalachicola Bay or other environmental damage to the Bay and its ecosystem, no preponderant testimony or evidence was presented which could establish that the development of Resort Village would cause such pollution or environmental damage. Such concerns will be thoroughly addressed in the permitting and regulatory processes, for the various permits referenced above, in any event. The Resort Village, however, was demonstrated to have no additional adverse impact on any waters, wetlands or ground water subject to state regulation, in addition to or different from that posed by the uses already permitted by the 1977 DO, as amended.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties it is RECOMMENDED that a Final Order be entered by the Florida Land and Water Adjudicatory Commission which: Supersedes the January 4, 1994 order in its entirety; Amends the 1977 Development Order to specifically allow multi-family use for the Petitioners' Property in the manner proposed by the Petitioners; Determines that the amendment to this 1977 Development Order does not constitute a substantial deviation under Chapter 380, Florida Statutes; Determines that the Petitioners have vested rights to develop their property at the densities and intensities of use proposed, subject to issuance of appropriate permits for storm water and waste water treatment construction and operation, site plan approval by Franklin County, and which incorporates the voluntary agreements and restrictions entered into by the Petitioners with the adjoining property owners; Requires Franklin County to follow the same procedures and guidelines in the site plan approval process and building permit process for development of the Petitioners' Property as it does for every commercial or multi-family developments in Franklin County, Florida. DONE AND ENTERED this 11th day of January, 1995, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of January, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2043DRI Petitioners' Proposed Findings of Fact The Petitioners' proposed findings of fact are accepted to the extent they are not inconsistent with those made above by the Hearing Officer. They are rejected to the extent that they are so inconsistent, as being unnecessary, immaterial, or not supported by preponderant evidence of record. Respondent's and Intervenor's Proposed Findings of Fact The Intervenor's proposed findings of fact have been adopted by reference by the Respondent. 1-9. Accepted, but not necessarily material to resolution of the issues presented to the Hearing Officer. Accepted. Rejected, as not entirely in accord with the preponderant weight of the evidence as developed at hearing. 12-15. Accepted, but not entirely as to materiality inasmuch as this is a de novo proceeding with resolution of the issues presented dependent upon evidence adduced at a de novo hearing. These proposed findings are, in essence, illustrative of the procedural history of this case. 16-30. Accepted, to the extent that they actually constitute proposed findings of fact, and rejected to the extent that they merely constitute recitations of testimony. Although they are accepted, the concerns expressed are not material to the narrow range of issues presented in this proceeding, as opposed to the permitting proceedings to come concerning the storm water and waste water construction and operation permits which must be sought from the DEP. Moreover, the feared impacts which the concerns expressed in proposed findings of fact 16-30 relate have not been proven by preponderant evidence in view of the character of the proposed development, the decision by the developer not to seek permitting or to do any development in jurisdictional wetlands and in view of the less dense and intense type of development proposed herein versus that already permitted in terms of commercial designated use already allowed by the 1977 Development Order. Thus, these proposed findings of fact are largely irrelevant and immaterial to the issues presented in this particular proceeding. 31-35. Rejected, as constituting largely recitations of testimony, rather than proposed findings of fact, as being immaterial, in part, to the specific issues presented for resolution in this proceeding, as delineated in the above Findings of Fact and Conclusions of Law made by the Hearing Officer and as subordinate to the findings of fact in these particulars made by the Hearing Officer. They are largely irrelevant due to the discussion and conclusions of law made by the Hearing Officer, which are predicated on the Hearing Officer's findings of fact supported by the preponderant evidence of record. COPIES FURNISHED: Ms. Barbara Leighty Florida Land & Water Adjudicatory Commission Executive Office of the Governor 426 Carlton Building Tallahassee, FL 32301 Mr. Thomas H. Adams P.O. Box 791 Eastpoint, FL 32328 Al Shuler, Esq. P.O. Box 850 Apalachicola, FL 32329 L. Lee Williams, Jr., Esq. P.O. Box 1169 Tallahassee, FL 32302-1169 Mr. Tom Beck Bureau of Land and Water Management Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Gregory C. Smith, Esq. General Counsel Florida Land & Water Adjudicatory Commission Office of the Governor The Capitol, Room 209 Tallahassee, FL 32399-0001 J. Ben Watkins, Esq. 41 Commerce Street Apalachicola, FL 32320 William J. Peebles, Esq. 306 E. College Avenue Tallahassee, FL 32301
The Issue The issue in this case is whether Respondent Laniger Enterprises of America, Inc. (Laniger), is entitled to the renewal of its domestic wastewater facility permit that was denied by Petitioner Department of Environmental Protection (Department).
Findings Of Fact The Parties The Department is the administrative agency of the State of Florida having the power and duty to protect Florida's air and water resources and to administer and enforce the provisions of Chapter 403, Florida Statutes (2005),1 and the rules promulgated in Florida Administrative Code Title 62. Laniger is a Florida corporation that owns and operates the WWTP that is the subject of this case, located at 1662 Northeast Dixie Highway, Jensen Beach, Martin County, Florida. The WWTP is referred to in the Department permit documents as the Beacon 21 WWTP. The WWTP Laniger acquired the WWTP in 1988 in a foreclosure action. At that time, the WWTP was in a "dilapidated" condition and was operating under a consent order with the Department. After acquiring the WWTP, Laniger brought it into compliance with the Department's requirements. Laniger's WWTP is commonly referred to as a "package plant."2 The WWTP's treatment processes are extended aeration, chlorination, and effluent disposal to percolation ponds. The WWTP does not have a direct discharge to surface water. It was permitted to treat 99,000 gallons per day (gpd) of wastewater. Its average daily flow during the past year was about 56,000 gallons. The east side of the WWTP site is adjacent to Warner Creek. On the north side of the WWTP site, an earthen berm separates the WWTP's percolation ponds from a drainage ditch that connects to Warner Creek. Warner Creek is a tributary to the St. Lucie River. The St. Lucie River is part of the Indian River Lagoon System. The Indian River Lagoon Act In 1989, the St. Johns River Water Management District and the South Florida Water Management District jointly produced a Surface Water Improvement and Management (SWIM) Plan for the Indian River Lagoon System ("the lagoon system"). For the purpose of the planning effort, the lagoon system was defined as composed of Mosquito Lagoon, Indian River Lagoon, and Banana River Lagoon. It extends from Ponce de Leon Inlet in Volusia County to Jupiter Inlet in Palm Beach County, a distance of 155 miles. The SWIM Plan identified high levels of nutrients as a major problem affecting water quality in the lagoon system. Domestic wastewater was identified as the major source of the nutrients. The SWIM Plan designated 12 problem areas within the lagoon system and targeted these areas for "research, restoration and conservation projects under the SWIM programs." Department Exhibit 2 at 11-13. Neither Warner Creek nor the area of the St. Lucie River that Warner Creeks flows into is within any of the 12 problem areas identified in the SWIM Plan. With regard to package plants, the SWIM Plan stated: There are numerous, privately operated, "package" domestic WWTPs which discharge indirectly or directly to the lagoon. These facilities are a continual threat to water quality because of intermittent treatment process failure, seepage to the lagoon from effluent containment areas, or overflow to the lagoon during storm events. Additionally, because of the large number of "package" plants and the lack of enforcement staff, these facilities are not inspected or monitored as regularly as they should be. Where possible, such plants should be phased out and replaced with centralized sewage collection and treatment facilities. Department Exhibit 2 at 64. In 1990, the Legislature passed the Indian River Lagoon Act, Chapter 90-262, Laws of Florida. Section 1 of the Act defined the Indian River Lagoon System as including the same water bodies as described in the SWIM Plan, and their tributaries. Section 4 of the Act provided: Before July 1, 1991, the Department of Environmental Regulation shall identify areas served by package sewage treatment plants which are considered a threat to the water quality of the Indian River Lagoon System. In response to this legislative directive, the Department issued a report in July 1991, entitled "Indian River Lagoon System: Water Quality Threats from Package Wastewater Treatment Plants." The 1991 report found 322 package plants operating within the lagoon system and identified 155 plants as threats to water quality. The 1991 report described the criteria the Department used to determine which package plants were threats: Facilities that have direct discharges to the system were considered threats. Facilities with percolation ponds, absorption fields, or other sub-surface disposal; systems located within 100 feet of the shoreline or within 100 feet of any canal or drainage ditch that discharges or may discharge to the lagoon system during wet periods were considered threats. * * * Facilities with percolation ponds, absorption fields, or other sub-surface disposal systems located more than 100 feet from surface water bodies in the system were evaluated case-by-case based on [operating history, inspection reports, level of treatment, and facility reliability]. Laniger's package plant was listed in the 1991 report as a threat to the water quality of the lagoon system because it was within 100 feet of Warner Creek and the drainage ditch that connects to Warner Creek. Laniger's WWTP was not determined to be a threat based on its wastewater treatment performance. There was no evidence presented that Laniger's WWTP had ever had intermittent treatment process failure, seepage to the lagoon system from effluent containment areas, or overflow during storm events. Those were the concerns related to package plants that were described in the SWIM Plan and the Department's 1991 report. Laniger's WWTP was not determined to be a threat based on evidence that it was causing or contributing to excess nutrients in Warner Creek or in that part of the St. Lucie River nearest to Laniger's WWTP. No evidence was presented that there are excess nutrients in Warner Creek or in that part of the St. Lucie River nearest to Laniger's WWTP. The Department's 1991 report concluded that the solution for package plants threats was to eliminate the package plants and connect their wastewater flow to centralized sewage collection and treatment facilities. To date, over 90 of the 155 package plants identified in the Department's 1991 report as threats to the water quality of the lagoon system have been connected to centralized sewage collection and treatment systems. The 1999 Permit and Administrative Order On August 26, 1999, the Department issued Domestic Wastewater Facility Permit No. FLA013879 to Laniger for the operation of its WWTP. Attached to and incorporated into Laniger's 1999 permit was Administrative Order No. AO 99-008- DW43SED. The administrative order indicates it was issued pursuant to Section 403.088(2)(f), Florida Statutes. That statute pertains to discharges that "will not meet permit conditions or applicable statutes and rules" and requires that the permit for such a discharge be accompanied by an order establishing a schedule for achieving compliance. The administrative order contains a finding that the Beacon 21 WWTP is a threat to the water quality of the lagoon system and that the WWTP "has not provided reasonable assurance . . . that operation of the facility will not cause pollution in contravention of chapter 403, F.S., and Chapter 62-610.850 of the Florida Administrative Code." The cited rule provides that "land application projects shall not cause or contribute to violations of water quality standards in surface waters." The administrative order required Laniger to connect its WWTP to a centralized wastewater collection and treatment [facility] "within 150 days of its availability . . . or provide reasonable assurance in accordance with Chapter 620.320(1) of the Florida Administrative Code that continued operation of the wastewater facility is not a threat to the water quality of the Indian River Lagoon System." As a result of an unrelated enforcement action taken by the Department against Martin County, and in lieu of a monetary penalty, Martin County agreed to extend a force main from its centralized sewage collection and treatment facility so that the Laniger WWTP could be connected. The extension of the force main was completed in April 2003. On April 10, 2003, the Department notified Laniger by letter that a centralized wastewater collection and treatment system "is now available for the connection of Beacon 21." In the notification letter, the Department reminded Laniger of the requirement of the administrative order to connect within 150 days of availability. On May 9, 2003, Laniger's attorney responded, stating that the administrative order allowed Laniger, as an alternative to connecting to the centralized wastewater collection and treatment system, to provide reasonable assurance that the WWTP was not a threat to the water quality of the lagoon system, and Laniger had provided such reasonable assurance. Laniger's attorney also stated, "due to the location of Martin County's wastewater facilities, such facilities are not available as that term is defined in the [administrative] order." On September 29, 2003, the Department issued a warning letter to Laniger for failure to connect to the Martin County force main and for not providing reasonable assurance that the WWTP will not cause pollution in contravention of Chapter 403, Florida Statutes. The Department took no further formal action until it issued the NOV in August 2005. Laniger's challenge of the NOV was consolidated with this permit case. The Permit Renewal Application In an "enforcement meeting" between Laniger and the Department prior to the expiration of 1999 permit, the Department told Laniger that it would not renew Laniger's WWTP permit. Later, when Laniger filed its permit renewal application, the Department offered to send the application back so Laniger would not "waste" the filing fee, because the Department knew it was not going to approve the application. Laniger submitted its permit renewal application to the Department on February 15, 2005. The Department considered Laniger's permit application to be complete, but proceeded to prepare the Notice of Denial without any technical review of the application. The Department denied the application on April 6, 2005. The Department's Notice of Permit Denial stated that the permit was denied because Laniger had not connected to the available centralized wastewater collection and treatment system nor provided reasonable assurance that the WWTP "is not impacting water quality within the Indian River Lagoon System." The record evidence showed that the "reasonable assurance" that would have been necessary to satisfy the Department was more than the reasonable assurance the Department usually requires for package plants, and more than the Department would have required if Laniger's WWTP was 100 feet from Warner Creek. Competent substantial evidence was presented that Laniger's WWTP is capable of being operated in accordance with the statutes and rules of Department generally applicable to package wastewater treatment plants. Laniger's 1999 permit expired on August 25, 2004. Laniger has operated the plant continuously since the permit expired. Whether the Martin County Facility is Available As discussed below in the Conclusions of Law, it is concluded that the Department did not have authority to require Laniger to connect the WWTP to the Martin County force main or to require assurance beyond the reasonable assurance generally required for package treatment plants in order to obtain a permit. However, because considerable evidence and argument was directed to whether the force main was available, that issue will be addressed here. The Martin County force main was not extended to the boundary of the Laniger WWTP site. The force main terminates approximately 150 feet north of the Laniger WWTP site and is separated from the WWTP site by a railroad and railroad right-of-way. Laniger presented undisputed evidence that the cost to connect to the Martin County force main would be approximately $490,000 and that cost was prohibitively high, given the relatively small number of households served by the WWTP. The Laniger WWTP is subject to rate regulation by the Public Service Commission (PSC). Laniger presented evidence suggesting that connection to the Martin County force main would result in rates that would not be approved by the PSC. The evidence was speculative and not competent to support a finding regarding PSC action. The evidence does show, however, that PSC rate regulation was not a factor that the Department considered when it determined that the Martin County force main was available. There is no Department rule that defines when a centralized sewage collection and treatment facility is "available." The determination that the Martin County force main was available to Laniger was made informally by members of the Department's compliance staff in the Department's St. Lucie office. Mr. Thiel testified that he considered the force main to be available because it was "in close proximity" to Laniger's WWTP. However, Mr. Thiel admitted that there is a difference of opinion within DEP as to when a facility is available and reasonable persons could disagree about whether a facility was available. Mr. Thiel thought that the cost to connect is a factor to be considered in determining whether a facility is available, but another Department employee did not think cost should be considered. There was no evidence that the Department took into account Laniger's cost to connect in determining that the Martin County force main was available. The Department simply assumed that the Martin County force main was close enough to the Laniger WWTP site that the cost to Laniger would not be prohibitive. In addition, the Department was aware of other package plants that had connected to centralized sewage collection and treatment facilities that were the same distance or a greater from the package plant, and the Department did not hear from the owners of the package plants that the costs were prohibitive. Timothy Powell of the Department stated that force mains are usually made available by extending the force main so that it is "abutting the property as much as possible." He also stated that he assumed that Martin County would extend its force main under the railroad and to the boundary of the Laniger WWTP site after Laniger agreed to connect. However, there was no evidence to show that this is Martin County's intent, and the Department did not tell Laniger that Laniger did not have to connect to the force main unless Martin County brought the line to the boundary of the WWTP site. If the Department had authority to require Laniger to connect to the Martin County force main when it became available, and in the absence of any rule criteria to determine when a centralized sewage collection and treatment facility is available, the determination would have to be based on reasonableness. Reasonableness in this context must take into account the cost of the connection. Cost is the inherent reason that Laniger was not required to connect to the Martin County centralized sewage collection and treatment facility without regard to whether the facility was available. Laniger showed that the cost of connecting to the force main is unreasonably high due to the need to construct a line beneath the railroad. Therefore, Laniger proved by a preponderance of the evidence that the Martin County force main is not available.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order granting Laniger Enterprises of America, Inc., a renewal of its wastewater treatment plant operating permit. The permit should contain the same conditions as were contained in the 1999 permit, with the exception of those conditions derived from Administrative Order No. AO 99-008- DW43SED. DONE AND ENTERED this 19th day of September, 2006, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER 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 19th day of September, 2006.
Findings Of Fact Application for consumptive use permit No. 75-00225 is a request for an existing use to be withdrawn from the Floridan Aquifer from two different wells. These two wells are located in the Hillsborough Basin and in Polk County. The property contiguous to the wells encompasses approximately 80.9 acres. The water is to be used for citrus processing and disposed of off site. The permit seeks, for average daily withdrawal, 2.98 million gallons per day for one well and 1.566 million gallons per day for the other well for a total average daily withdrawal of 3.864 million gallons per day. For maximum daily withdrawal the permit seeks 4.096 million gallons per day for one well and 2.792 million gallons per day for the other well for a total maximum daily withdrawal of 6.888 million gallons per day. The amount of water sought to be consumptively used by this application greatly exceeds the water crop of the subject lands owned by applicant. Mr. John C. Jennings and Mr. William Sunderland, owners of property adjacent to the Kraft property, appeared in their own behalf and stated that they felt that their wells were being hurt because of the large quantities of water pumped by Kraft. They did not attempt to offer expert testimony nor did they claim to be hydrologists. They did note that each had substantial problems with their wells running out of water.
Recommendation It does not appear that the district has had a reasonable opportunity to examine the objections and comments of Messers. Jennings and Sunderland with regard to the effect of the applied for consumptive use on their property. These objections were apparently raised for the first time at the hearing. As noted in paragraph 6, if the wells of Messers. Jennings and Sunderland are substantially affected in an adverse manner by applicant's use of such large quantities of water, such a use would not seem to be a reasonable, beneficial use as is required for permit unless further conditions were placed upon the permit. Therefore, it is recommended that the Southwest Florida Water Management District staff further investigate the effect of the applied for consumptive use on the wells located on the property of John C. Jennings and William Sunderland prior to the Board taking formal action on this application. ENTERED this 26th day of May, 1976, in Tallahassee, Florida. CHRIS H. BENTLEY, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Staff Attorney Southwest Florida Water Management District P. 0. Box 457 Brooksville, Florida 33512 Douglas T. Moring, Esquire Kraftco Corporation Kraftco Court Glenview, Illinois 60025
