Findings Of Fact The proposed project is a six-lane, combination low and high level bridge crossing Mill Cove and the St. John's River in Duval County, Florida. The project entails construction of approximately 6,000 feet of low level trestle-type bridge structure and approach spans beginning on the south side of Mill Cove and extending across the Cove to the northern edge of Quarantine Island, an artificial spoil island; 3,000 feet of high level bridge crossing the main channel of the St. John's River; and northern approach spans touching down on Dame Point on the northern shore of the St. John's River. In order to construct the proposed project, JTA is required to obtain a water quality permit and certification from DER. JTA filed its application with DER, accompanied by supporting data, including several studies performed by professional consultants. After review of the application, DHR filed notice of its intent to issue the requested water quality permit and certification, and Petitioners filed a timely request for a hearing pursuant to Section 120.57(1) Florida Statutes, to oppose the issuance of the permit and certification. Petitioners are various groups and individuals concerned about water quality in the St. John's River and the Jacksonville area. Petitioners' standing to seek relief in this proceeding was stipulated by all parties. Construction of the project will result in: filling of approximately .07 acres of wetlands to construct the south abutment on the shore of Mill Cove; dredging of approximately 185,000 cubic yards of material from Mill Cove to create a 4,400 foot long, 190 foot wide barge access channel, with a five foot navigation control depth parallel to the low level portion of the project; temporary filling of approximately .3 acres of wetlands above mean high water on the south shore of Quarantine Island to provide construction access to the island, which area is to be restored upon completion of construction; construction of a diked upland spoil containment site approximately 31 acres in size above mean high water on Quarantine Island to retain all dredge spoil associated with the project; construction of a temporary dock at the northern end of Quarantine Island for access and staging purposes, which is to be removed on project completion; and filling of approximately 16,000 cubic feet of material waterward of mean high water for rip-rap protection around main piers in the St. John's River. Dredged materials will be removed by hydraulic dredges. The St. John's River and its tributaries have been designated Class III waters by DER in the project area. The project involves dredging below mean high water and filling above mean high water, and is a dredge-and-fill project for purposes of Chapters 403 and 253, Florida Statutes, and Chapters 17-3 and 17-4, Florida Administrative Code, and is regulated by DER. The project is an element in a proposed eastern bypass around the City of Jacksonville. It is expected that, as a result of the project, existing area industry will receive more efficient transportation service, commuter trip miles from southeastern Jacksonville to northern Jacksonville will be reduced, transportation routes to education facilities will be improved, and tourist traffic will be routed around downtown Jacksonville, reducing miles traveled to nearby beach resorts and thereby relieving downtown congestion. The benefits to costs ratio of the project appears positive and beneficial to Duval County and Jacksonville, in that for every dollar spent to construct the project, $2.80 could be returned to the community in the form of increased economic activity and more efficient transportation. Testimony clearly established that the state waters in the project area are currently severely degraded and are not likely to meet Class III water quality standards. Violations of Class III standards for dissolved oxygen and some heavy metals, such as mercury, presently exist as background conditions in the St. John's River and Mill Cove. Further, a water quality analysis performed by DER in the project area indicates high background concentrations of heavy metals and PCB's in both the water column and sediments in the project area. When the pro posed project is analyzed within the context of these existing background water quality conditions, it appears highly unlikely that any impact from the project will further degrade existing conditions. The project as currently designed includes plans for total containment of spoil material resulting from dredging activity on the upland portions of Quarantine Island. There will be no direct discharge of dredge $materials from this containment area into the receiving waters of the state. JTA performed a water and sediment analysis of the project area, the purpose of which was to determine the existence and concentrations of specific pollutants that could adversely impact Class III waters if reintroduced into the aquatic system. JTA employed a consultant whose analytical program was designed in consultation with DER and complied with all standard testing procedures required by Rule 17-3.03, Florida Administrative Code. This analysis identified three primary-project activities where control of toxic and deleterious materials was critical: turbidity control; upland spoil containment; and direct discharge of spoil water to state waters. Sediments in the Mill Cove area are extremely fine and may be resuspended in the water column in quantities that could violate state water quality standards if dredging is done improperly. It appears from the evidence that any turbidity problem can be avoided by employing silt curtains and hydraulic dredging during channel excavation. Silt curtains should adequately retain turbidity below levels which would violate state water quality standards, in view of the fact that the JTA study hypothesized a "worst-case" condition for projecting turbidity and pollutant concentration by assuming no upland spoil containment, silt curtains or reasonable mixing zone. Although use of silt curtains and hydraulic dredging cannot absolutely guarantee zero-discharge of suspended sediments from the dredging area, the proposed system of turbidity control is adequate to provide reasonable assurance of non-violation of state water quality standards. Due to the existing toxic background conditions in Mill Cove, DER imposed a permit condition requiring spoil from dredging activities to be completely contained in an upland landfill-type site, with no overflow that could allow effluent to return to waters of the state. The upland dike system proposed in the project application is designed to retain all spoil material and water without direct discharge into state waters. Testimony established that the proposed dike system is designed to hold far more spoil material than the proposed project will generate. Although the dike system is to be constructed from dredged material previously deposited on Quarantine Island, it appears from the testimony that these materials were dredged from the main channel of the St. John's River and are cleaner and sandier in character than sediments in the Mill Cove area. The dike system, in conjunction with natural percolation and evaporation, is adequately designed to retain dredge spoil on the upland portion of Quarantine Island, and can reasonably be expected not to release toxic and deleterious substances into receiving waters of the state. It is also significant that a condition of the requested permit requires project water quality monitoring to afford continuing assurance that the project will not violate standards contained in Chapter 17-3, Florida Administrative Code. These standards and the conditions required to achieve them have been included in DER's letter of intent to issue the permit for this project. It is specifically concluded from the evidence that project dredging will not release toxic and deleterious substances into Class III waters in violation of state water quality standards, and that project dredging in Mill Cove incorporates reasonable safeguards for spoil disposal and turbidity control so as to assure non-violation of state water quality standards. JTA plans to use a direct discharge method to dispose of storm water from the bridge. Storm water will fall through 4-inch screened holes called "scuppers" placed at regular intervals along the bridge surface directly into either Mill Cove or the St. John's River. JTA was required to provide in its application reasonable assurance that storm water runoff from the Project would not exceed applicable state standards for turbidity, BOD, dissolved solids, zinc, polychlorinated biphenols, lead1 iron, oils or grease, mercury, cadmium and coliform. To this end, JTA submitted a study entitled Effect of Rainfall Runoff from Proposed Dame Point Bridge on Water Quality of St. John's River. This study analyzed the chemical composition of storm water runoff from an existing bridge, comparable in both size and design, to the proposed project, which crosses the St. John's River south of the City of Jacksonville. This study adequately established that storm water runoff into the St. John's River across the length of the proposed bridge will not degrade the water quality of the St. John's River below current water quality standards. All but three of the parameters tested in the study were within standards contained in Chapter 17-3, Florida Administrative Code. The remaining three pollutants were either not automobile-related, or would not violate applicable water quality standards after a reasonable opportunity" for mixing with receiving waters. One of these pollutants, mercury, is not automobile-related, and the concentration of mercury discovered in bridge runoff test samples was essentially the same as that measured in rainfall samples. The sampling for mercury was performed using the ultrasensitive "atomic absorption" method, which is capable of measuring tenths of a part per billion of mercury. Another method, the "Dithizone" method, is a technique recognized as effective by DER, and would have, if utilized, yielded a result within the "none detectable" standard contained in Rule 17-3.05(2) , Florida Administrative Code. As to the remaining two pollutants, coliform and lead, testimony established that a dilution rate of 400 to 1, after mixing with receiving waters, would not result in violation of applicable Class III water standards. Testimony also clearly established that water circulation in the project area would result in the requisite dilution ratio of approximately 400 to 1. The storm water runoff study was performed on a bridge similar in all important characteristics to the proposed project, and therefore validates the scientific methodology utilized to determine the expected impact of runoff from the proposed project on water quality in the St. John's River. The applicant has provided in its permit application the best practicable treatment available to protect state waters in the design of both the low and high level portions of the proposed bridge. Extensive research and analysis of design alternatives for both the low and high level portions of the bridge were undertaken by JTA and its consultants prior to selecting the proposed design for the bridge. JTA prepared and submitted to DER, as part of the application process, a document entitled Summary of Construction Techniques in Mill Cove, Dame Point Expressway. This document analyzed and summarized the available construction and design alternatives for the low level trestle portions of the project. The analysis included consideration of overhead construction, construction from a temporary wooden structure parallel to the project, and construction from barges using a shallow channel parallel to the project. The design chosen will cost more than one million dollars less than the next alternative, and will cut construction time by two years over the next alternative design. Given the demonstrated need for the proposed project, the already degraded water quality in the project area, the safeguards for water quality contained-in the project design, and the savings to be realized in both cost and time of construction, the design presently contained in the application is the best practicable. Both Petitioners and JTA have submitted proposed findings of fact. Petitioners' Proposed Findings of Fact numbered 1 through 4 have been substantially adopted herein. JTA's Proposed Findings of Fact numbered 1 through 7 have also been substantially adopted. To the extent that proposed findings of fact submitted by either Petitioners or JTA are not adopted in the Recommended Order, they have been specifically rejected as being either irrelevant to the issues in this cause, or as not having been supported by the evidence.
The Issue The issue for consideration in this hearing is whether the Respondent, W. B. Persico, should be issued a permit to construct a commercial marina as described in the Department's Intent to Issue, in Class III waters of the state in Charlotte County, Florida.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Burnt Store Isles Association, Inc., was an association of property owners whose property is located in the Burnt Store Isles subdivision located in Charlotte County, Florida. The applicant, W. B. Persico, is the owner of a piece of property located adjacent to the subdivision and applicant for a permit to construct a marina on his property. The Department of Environmental Regulation is the state agency responsible for the regulation and permitting of dredge and fill activities in the waters of the state. Mr. Persico's property is located on a dead end basin canal in Charlotte County, Florida. The canal is a Class III water but is not classified as an Outstanding Florida Water. On July 31, 1989, Mr. Persico applied to the Department for a permit to construct a 75 slip, 5660 square foot commercial marina on his property within this artificial, dead end basin. Because of objections by the Department to several aspects of the proposed project, on February 27, 1990, Mr. Persico submitted a modification proposal in which he eliminated the use of pressure treated lumber for pilings, substituting concrete pilings; incorporated boat lifts in each slip; reduced the number of slips from 75 to 65; committed himself to installing a sewage pump-out facility at the site; committed to creating an inter-tidal littoral shelf planted with mangroves; agreed to face the existing vertical bulkhead seawall in the basin with rip-rap; and incorporated a commitment to include, as a part of his rental contract, long term agreements prohibiting vessel maintenance and liveaboards on boats at the site, and insuring the perpetual use of boat lifts and pump out facilities provided. He now proposes to market the marina as a condominium ownership operation. The basin in which the Persico project is proposed is 136 feet across at the entrance, (the narrowest point), and 326 feet across at the widest point. The length of the basin is more than 900 feet. The docking structure to be created will have fingers extending no more than 39 feet into the water from the existing vertical seawall. It will have a 4 foot wide walkway parallel to and 10 feet from the existing seawall from which the arms will extend 25 feet into the basin. The basin which is the proposed location for the marina is at the end of the easternmost canal in the Burnt Store Isles subdivision. It is located just west of and parallel to US Route 41, and at the entrance point, joins a perimeter waterway which meanders approximately 1 mile seaward toward a lock which joins that waterway to Alligator Creek which is an Outstanding Florida Water. The waterway from the basin through the lock into Alligator Creek and thereafter to the Gulf provides the only navigable access for most vessels moored in the Burnt Store canals and which would be moored in the proposed marina between Charlotte Harbor and the Gulf of Mexico. The lock which joints the Burnt Store canals to Alligator Creek consists of two hydraulically operated swinging gates which are operated by a boater entering or exiting the canal system. This lock was constructed as a part of a 1973 agreement between Punta Gorda Isles, Inc., a developer, and the state to prevent the construction and runoff polluted waters of the canal from freely mingling with the Outstanding Florida Water in Alligator Creek. The lock is now maintained in an open position from November 15 to May 15 because boaters complained of the inconvenience of having to operate the lock system. Available evidence indicates that a complete passage through the lock, one way when closed, takes 15 minutes. No more than 24 boats can complete a round trip in a 12 hour boating day. When the lock is open there is no appreciable delay. The residential lots which abut the Burnt Store canals are still mostly vacant. The City of Punta Gorda has assumed the responsibility of conducting a 5 year water quality monitoring program which was previously agreed to by Punt Gorda Isles, Inc. when the lock was built. The 1973 agreement was amended in 1984 to permit the operation of the lock in a closed position for an entire year if water quality monitoring should indicate a degradation of water quality in either Alligator Creek of the Burnt Store Isles canals. This has not been necessary. The Petitioners fear that pollution generated by the addition of 65 additional boats moored at and operating from the proposed marina will cause the Department to implement that clause and order the lock to operate from a closed position year round. This does not mean that the lock would not be opened for boats, but that it would be closed when not being used. Petitioners contend that the increased usage would create an intolerable traffic jam at the lock which would, for the most part, make their use of the waterway to the Gulf intolerable. Mr. Persico is a former road and bridge contractor. Though he has never owned a marina, at one time he rehabilitated one in the Chicago area. He has owned the property in question here for four years and now plans to develop a condominium ownership marina. When he decided to do so, he hired Mr. James M. Stilwell, an environmental consultant, to prepare and submit to the Department the application for the required dredge and fill permit. Initial discussions between Mr. Stilwell and the Department dealt with many environmental issues. Mr. Stilwell pointed out that the water in the canal might already be stale and avenues were explored to mitigate that problem. They did not discuss the type of docks to be installed or the potential for destruction of mangrove stands along the seawall, but even though the original plan called for the docks to be placed against the seawall, it was to be done in such a way as not to disturb the mangroves. The modified plan removing the docks to a point 10 feet off from the wall will obviate any damage to the mangroves. Admittedly, the original submittal prepared by Mr. Stilwell contained factors which were considered unacceptable to the Department. These included construction of the finger piers with pressure treated wood. To eliminate possible pollution from leaching, the pressure treated wood was replaced with a floating dock using concrete pilings. Liveaboards, and the potential contamination from that activity, have been prohibited. The provision and required use of a sewage pump-out facility should prevent any escape of polluting sewage into the waters of the basin. The use of power hoists at each slip should prevent pollution from bottom paint leaching, and boat maintenance at the marina is to be prohibited. Fueling of the vessels will not be permitted at the site thereby obviating the potential of polluting fuel spills. The construction of a 10 foot wide littoral shelf, planted with mangroves, between the dock and the sea wall will provide increased water filtration and improve water quality. It would also help the development of the fish and wildlife population and would reduce the flushing time. Air released into the water from the use of the boat lifts should add oxygen and contribute to improved water quality. At the present time, the ambient water quality in the basin, as it pertains to dissolved oxygen, is probably below standards in the lower depths of the basin, and of the outside channels as well, due to poor light penetration. The channel depth is anywhere from 20 to 25 feet. The oxygen level at the bottom is undoubtedly depleted. Mangroves are currently located along 300 feet of the 1,300 foot seawall. Mr. Stilwell's proposal, and that approved by the Department, does not call for removal of the mangroves, but they would be built around or possibly trimmed. Mr. Stilwell is of the opinion that provision for trimming of the mangroves is inherent in the granting of the permit though such permission was not specifically sought. There is no evidence to contradict this thesis. Water quality issues were raised subsequent to the filing of the original application, and the facility as now planned is designed to minimize impacts on the environment as best as can be done. Water quality would be improved, or at worst not adversely affected, by the prohibitions against liveaboards and fueling, the provision of boat lifts and a pump station, and the prohibition against other structures beyond the dock and slips. Flushing of the water is important considering the fact that the dissolved oxygen content in the water is already low. However, Mr. Stilwell is satisfied, and it would so appear, that water quality would be improved by the implementation of the proposals as included in the conditions to the permit. Mr. Stilwell, admittedly, did no dissolved oxygen tests because they were not considered as a part of the permit application. If the Department requests them, they are done, but they were not requested in this case. It is clear that the original application did not address all the environmental concerns that Petitioners feel are pertinent. Nonetheless, those items already discussed were treated, as were turbidity control during construction. As to others of concern to Petitioners, many are included in the state standards and need not be specifically addressed in the application. The Department considered the application in light of the state standards, and by the use of the conditions appended to the Intent to Issue, provided for the water quality and other environmental standards to be sufficiently addressed and met. In his February 22, 1990 letter to the Department, Mr. Stilwell directly addressed the public interest concerns including the mangroves and the construction of the littoral shelf. The Department was satisfied that the public interest criteria were met, and considered the plans to be environmentally sound. They appear to be so. Petitioners have raised some question as to the effect of the 39 foot long dock fingers interfering with navigation within the basin. Mr. Stilwell does not feel that the facility would create this problem, even at the narrowest point, and it is so found. The width of the canal there is 136 feet. The portion of the slip designed to accommodate vessels is no more than 25 feet long, and presumably, vessels of a length much greater than that would not visit the basin. Even subtracting 39 feet from the 136 feet narrow point, 97 feet of turning space remains, and this is almost four times the length of the normal vessel anticipated in the basin. Mr. Stilwell did not address the subject of the lock as it relates to navigation, but primarily as it relates to the impact on water quality and the environment. Nonetheless, he is of the opinion, and there is no evidence to the contrary, that keeping the lock open on a year round basis would not trigger a change to the ongoing program under the agreement between the state and Punta Gorda Isles and result in the lock being closed year round. Mr. Shultz, the environmental specialist with the Department, reviewed the application here initially for file completeness, and when all required information was in, made a site visit. He evaluated the application and the attachments for permitability. For Class III waters, the project must meet water quality standards outlined in the Department's rules. Only one of the water quality criteria, that of dissolved oxygen, was shown to be not met. Since the water was already below that standard, the test to be applied then is whether the project will create some improvement." In Mr. Shultz' opinion, planting the mangroves, as proposed by the applicant, does this, as does the use of the lifts. The existing mangroves will not be impacted by the project as it is proposed, and the use of rip-rap, as proposed, will provide additional surface area for organisms which will improve the water quality. When first reviewed, the Department had some concern about on-water storage of boats. These concerns were treated by the use of hoists to hold the boats out of the water when not in use, and as a result, pollutants will not be introduced by bottom paint leaching and, presumably, bilge pumping. Standard conditions included in all Department Intents to Issue, require the project to comply with applicable state water quality standards or to give assurances that such general standards for surface waters and Class III waters will be met. In this case, Mr. Shultz is satisfied that the applicant has demonstrated that water quality standards will be maintained, and there was no evidence presented by the Petitioners to contradict this. Once water quality standards are shown to be protected, then the project is balanced against the public interest criteria outlined in the statute. Here, the requirement is for a showing that the project is not contra to the public interest. It does not, because of its nature, require a positive showing that the project is in the public interest. In his opinion this project, as modified, will not adversely affect the health, safety and welfare of the public, (it will have no environmental effect on other property). It will not adversely affect the conservation of fish or wildlife in their habitats, (the planting of mangroves will provide a net improvement to species habitat in the area). The project will not adversely affect navigation, flow of water, or erosion, (the width and length of the dock system appear to pose no threat to navigation in the basin and there would appear to be no obstruction or potential therefor as a result of this project; the project is within a no-wake zone; and the size of vessels is limited by the slip size). The permit will not adversely affect marine productivity, (there is currently very little productivity in the area now since waters below 0 depth of 6 feet are already low in oxygen, and the project would, at least minimally, improve this condition). The project is permanent and would not adversely affect historical or archeological resources in the area, (there are no objects or known resources in the area, but a standard condition in the permit requires immediate notification if known resources or objects are found). The project would not adversely affect the current condition and relative value of functions being performed in the area since the area is currently a real estate development which is far from completely built. Based on his consideration of these criteria, Mr. Shultz concludes that the project is not contrary to the public interest and this appears to be a valid conclusion. There appears to be no evidence of sufficient weight, presented by the Petitioners, either through direct evidence or through cross examination of the applicant and Department witnesses that would tend to diminish the credibility of Mr. Shultz' analysis. If there are subsequent violations, the Department has enforcement action available. There is, consistent with the multiple use zoning category applied to the area across the basin from the marina, the potential for up to an additional 100 docks to be constructed in the basin beyond those treated here. Nonetheless, the Department does not consider 165 boats to be a problem either in the basin or at the lock. This is not necessarily a supportable conclusion, however. Those 100 additional docks do not currently exist and their potential should not be considered in determining whether to approve the permit under consideration here. In opposition to the applicant, Mr. Konover and Mr. Forsyth both indicated that the addition of 65 more boats would seriously overtax the operation of the lock and make it difficult, if not hazardous, to operate boats in that area between the Burnt Store Isles subdivision and Alligator Creek. Both individuals agree, and it is so found, that in general, motor boats pollute to some degree the waters on which that are operated as a result of oil leaks from engine operation, leakage of bilge oil, escape of sewage, and leaching of copper paint and other solvents. In addition, manatee have been seen in the area, and the increase of boating operations could present some hazard to the manatee population. There is, however, no indication that a manatee population is permanently in residence there or is even there frequently. It is also accepted that boat wake has an adverse effect on sea walls, and all of these factors should have been and, in fact were, considered in the analysis of the permitability of the project. The concerns of Mr. Konover and Mr. Forsyth were echoed by Mr. Gunderson who, over 30 years operating boats, has seen what he considers to be a definite lack of concern for the environment by many boaters who pump bilges directly into the water, throw debris overboard, and use detergents to wash their boats at marinas. He is of the opinion that renters of slips are generally less concerned about water quality than those who live on the water, and take a more cavalier approach to water quality standards. These sentiments are also held by Mr. Young who, over the years, has owned marinas in Connecticut and has observed the approach of nonowning slip users to the water at their disposal. His concerns could be met by the strict enforcement of standards at the marina. Mr. Powell, a nurseryman who owns the lot across the basin from the site of the proposed marina, fishes from his lot and has observed the an increase of pollution in the canal. He routinely sees floating dead fish, palm leaves, cocoanuts, bottles, slicks and other debris, and though he owns a multifamily lot, would have a difficult time putting in many slips since his lot, at the entrance to the basin at the narrow point, would be across from the slips proposed by applicant and their proximity would, he feels, hinder his ability to build out into the basin as well.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Department of Environmental Regulation enter a Final Order issuing Permit No. 081679445, to W. B. Persico as modified and outlined in the Intent to Issue dated March 16, 1990. RECOMMENDED this 9 day of November, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9 day of November, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-3093 The following constitutes my specific rulings pursuant to S 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. & 2. Accepted and incorporated herein. 3. & 4. Accepted. Accepted but applicable only when the locks are closed. Accepted. - 9. Accepted and incorporated herein. Accepted. & 12. Accepted and incorporated in substance herein. 13. & 14. Accepted and incorporated herein. Accepted and incorporated herein. Rejected as contrary to the weight of the evidence. Accepted and incorporated herein. & 19. Accepted and incorporated herein. 20. & 21. Unsupported by convincing evidence of record. Accepted as valid when the lock is operated from a closed position. However, the evidence indicates that currently the lock is left open from November 15 to May 15 of each year and this does not cause delay. Accepted if the lock is operated from a closed position. Unsupported by convincing evidence of record. FOR THE APPLICANT: 1. - 6. Accepted and incorporated herein. 7. - 15. Accepted and incorporated herein. Accepted and incorporated herein. & 18. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Accepted. - 32. Accepted and incorporated herein. FOR THE DEPARTMENT: Accepted. and incorporated herein. - 4. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. & 9. Accepted and incorporated herein. 10. - 14. Accepted and incorporated herein. 15. - 18. Accepted and incorporated herein. COPIES FURNISHED: Joseph F. Lynch Burnt Store Isles Association, Inc. P.O. Box 956 Punta Gorda, Florida 33951-0956 Michael P. Haymans, Esquire P.O. Box 2159 Port Charlotte, Florida 33949 Cecile I. Ross, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issues are whether the Respondents are guilty of misconduct as alleged in the Administrative Complaint filed on February 6, 1991, as amended and, if so, what corrective action should be ordered and what penalties imposed; and whether Paul Ayers is guilty of misconduct as alleged in the Notice of Denial of Operator Certification dated June 3, 1991, and, if so, whether the Department's action denying renewal of Mr. Ayers' wastewater treatment plant operator certification was correct.
Findings Of Fact Mr. Paul Ayers holds operator certificates issued by the Department in both drinking water treatment (Class C, No. 4360) and wastewater treatment (Class B, No. 3375). The Department's Notice of Denial of Operator Certificate, which forms the basis for the Division of Administrative Hearings case No. 91- 3861, identifies the wastewater treatment certificate number as Class B, No. 3375. Paul Ayers did submit certain Drinking Water Treatment Plant Daily Operation Summaries in which he identified his water treatment certificate as Class C, No. 4360 (Department Exhibit 8). Ms. Judy Devores is a Department certified Class C water treatment plant (WTP) operator (Certificate No. 4885) and a Class C wastewater treatment plant (WWTP) operator (Certificate No. 4753). Mr. Ayers and Ms. Devores are president and vice president, respectively, of Paul Ayers Utilities, Inc., a company that contracts with the owners of drinking water and wastewater treatment plants to operate them. Ms. Devores is sometimes known as Ms. Ayers (Department Exhibits 25 and 26). The office of the utilities company is in the home they share. The utility company has a handful of employees. The Department's Amended Complaint alleged that during the calendar year 1990, Respondents operated the following public water treatment plants and wastewater treatment plants: ST. LUCIE COUNTY WATER WASTEWATER Coggin Osteen Auto Dealership Coca Cola Foods Distribution Center Demarco's Restaurant Floresta Elementary School Floresta Elementary School Florida Power & Light Distribution Center Fontenelle Plaza Glendale Commons Subdivision Glendale Commons Subdivision Lakewood Park Subdivision Lakewood Park Subdivision Johnny's Restaurant Lakewood Park Plaza Loyal Order of Moose #248 Orange Co. of Florida, Orange Co. of Florida, Grove Grove Operations Complex Operations Complex Orchid Acres Mobile Home Orchid Acres Mobile Home Park Park Port St. Lucie Port St. Lucie Convalescent Center Convalescent Center Quick and Easy Convenience Store Raven Parc Industrial Park Rainbow Trailer Park Teacher's Place Child Care Visa St. Lucie Condominiums Vista St. Lucie Condominiums Whispering Creek La Buona Vita Lakewood Park Elementary Port St. Lucie Medical Center MARTIN COUNTY WATER WASTEWATER Lobster Shanty Restaurant Regency Mobile Home Park Regency Mobile Home Park Vista Del Lago Condominiums Vista Del Lago Condominiums Yankee Trader Plaza INDIAN RIVER COUNTY WATER WASTEWATER Citrus Elementary School Fellsmere Elementary School Fellsmere Elementary School Sebastian River Middle School Sebastian River Middle School OKEECHOBEE COUNTY WATER WASTEWATER Barlow's Fish Camp Big "O" R.V. Campground Barlow's Restaurant Four Acres Mobile Home Park Bob's Big Bass RV Park Pier 2 Motel Circle K Taylor Creek Lodge Crossroads Restaurant Town & County Mobile Home Martha's House Zachary Taylor Mobile Home Moose Lodge #1753 Town Star Convenience Store GLADES COUNTY WATER Old River Run Many of these water and wastewater treatment plants were acknowledged during the hearing as being operated by Paul Ayers Utilities, Inc. Some were not mentioned during testimony, but show up on various exhibits. Department's Exhibit 16, the minutes of a meeting held between the Department and Ms. Devores, contain a partial list of plants operated by Respondents. Lakewood Plaza On September 30, 1990, Paul Ayers and his employee, Danny Runyan, removed a water pump, flow meter, and chlorine feed pump from the Lakewood Plaza water treatment plant. This action interrupted potable water service to the facility until October 3, 1990. Ms. Devores contended that the owner of Lakewood Plaza had not paid Respondents for the equipment, and that she notified Jerry Toney of the Department prior to removal of the equipment, who told her "to take it if it was ours." Mr. Toney's contradiction of Ms. Devores' account is more believable. He first heard of the disabling of the Lakewood Plaza water treatment plant in a phone call from Wayne Dampier on October 1, 1990, notifying Mr. Toney that Mr. Dampier would replace the water pump that day, but no chlorinator pump could be installed until the next day. Ms. Devores' call to Mr. Toney was made after the equipment had been removed and after Mr. Dampier's call. A contemporaneous entry into the Department's records also indicates that Ms. Devores called the Department on October 1, 1990, after the water treatment plant had been disabled. Expert testimony established that disabling a water treatment plant is a potential public health hazard, and that deliberate disabling of a water system by an operator is not the same as accidental interruption of operations. Rule 17-555.350(3), Florida Administrative Code, requires an operator to receive written permission from the Department prior to altering or discontinuing water purification. This forms a basis for the operator's duty to avoid unilateral action. Removal of essential parts of a water treatment system as a remedy for nonpayment of bills for operator services threatens not only the owner of the system but also the public health, and is contrary to the Rule and to standard operating practices. Even were the testimony of Ms. Devores credited, oral notification to the Department before removal of equipment, or even oral acquiescence by an employee of the Department to removal undertaken to enforce collection of bills for services by disabling a public water system would not justify that action, which is inappropriate under Rule 17-555.305(3), Florida Administrative Code. Licensees have a duty to know the rules controlling their regulated activity. Mr. Ayers had been notified by the Department in 1986 that removing equipment (a gas chlorinator) from a public water system at Sand Dollar Villas was a serious violation of the duties of a certified operator and could result in revocation of his operating certificates. (Department Exhibit 13) The evidence is clear and convincing that Respondents did not notify the Department prior to removing the equipment. Deliberate disruption of a public water supply by a certified operator constitutes gross neglect and incompetence in the performance of the duties of a certified operator, with potential public health consequences. Both Mr. Ayers and Ms. Devores are responsible for this misconduct, as both participated in it. Use of Uncertified Personnel Danny Runyan was employed by Respondents during the period from approximately 1983 to May 1991. Mr. Runyan acknowledged that he never has been certified to operate water or wastewater treatment plants, but that during calendar year 1990, he fulfilled certified operator duties at Coggin O'Steen, Fontenelle, FPL Distribution Center, J & S Fish Camp, Johnny's Restaurant, PSL Medical Center, Quick & Easy, Rainbow Trailer Park, Raven Parc, Teachers' Place, Cinnamon Tree, Floresta Elementary School, Glendale Commons, Port St. Lucie Convalescent Home, and Vista del Lago plants under the direction or instruction of Paul Ayers or Judy Devores. Donna Anderson was employed as secretary and office manager at Respondents' business and to perform domestic work for Respondents who ran their business out of their home, for two years and nine months from 1988 to approximately October 1990. Her testimony corroborated Runyan's admissions, as did the testimony of Wayne Dampier, who is a certified operator for both water and wastewater treatment plants and who was employed by Respondents during a period from approximately October 1985 to August 1990. Ms. Anderson heard Paul Ayers or Judy Devores direct Danny Runyan to operate plants; it was common knowledge among Respondents' employees that Mr. Runyan operated plants. Mr. Dampier heard Paul Ayers direct Danny Runyan to operate plants, and Paul Ayers also directed Mr. Dampier to direct Danny Runyan to operate plants. Respondents contended that they did not know that Danny Runyan was operating plants, and that if he was doing so it was solely on the instruction of Wayne Dampier, a field manager for Paul Ayers Utilities, Inc. This is not believable, because the same pattern was followed with the work of another employee, John Canard. 2/ John Canard was uncertified, but received direct instructions about which plants he was to operate from Wayne Dampier. Mr. Canard believed that the instructions originated with Respondents, who were aware that he was operating water treatment plants before he was certified. Mr. Canard's belief is supported by Mr. Canard's time sheets (Respondents' Exhibit 26) which shows that between December 29, 1989, and January 19, 1990, while Mr. Canard was not yet certified in water treatment operations, he visited the following water treatment plants which Respondents serviced: 12/29/89 12:00 Lobster Shanty 12:15 Yankee Trader 2:15 Teachers Place 4:45 Fontenelle Plaza 1/2/90 3:00 Lobster Shanty 3:30 Yankee Trader 1/3/90 11:45 Yankee Trader 1:45 Teachers Place 4:00 Fontenelle Plaza 1/4/90 10:00 Johnny's Restaurant 12:15 Lobster Shanty 1:00 Yankee Trader 1/5/90 1:00 Yankee Trader 3:30 Teachers Place 5:15 Fontenelle Plaza 1/8/90 1:30 Teachers Place 3:15 Yankee Trader 5:45 Fontenelle Plaza 1/9/90 10:30 Lobster Shanty 11:15 Lobster Shanty 12:00 Yankee Trader 2:30 Johnny's Restaurant 3:30 Fontenelle Plaza 1/10/90 12:45 Teachers Place 1:15 Fontenelle Plaza 5:00 Yankee Trader 1/11/90 2:45 Yankee Trader 4:00 Fontenelle Plaza 1/12/90 1:15 Lobster Shanty 3:30 Yankee Trader 4:00 Fontenelle Plaza 1/15/90 4:00 Yankee Trader 1/16/90 1:00 Yankee Trader 1:30 Lobster Shanty 5:30 Fontenelle Plaza Respondents maintained that John Canard operated the Rainbow Park water treatment plant and offered his time sheets as evidence, which show that he did so prior to May 1990. Mr. Canard's time sheets show several entries for Rainbow Park prior to certification, including 3/27/90 at 1:00 p.m.; 4/5/90 at 2:00 p.m.; 4/10/90 at 1:15 p.m.; 4/12/90 at 3:45 p.m. and 4/17/90 at 12:30 p.m. The evidence establishes a pattern of using uncertified operators which Respondent knew or should have known about, based on the employee time sheets. It is not credible that Mr. Canard visited these plants on such a regular basis without providing operator service, or that Respondents did not see the time sheets in the regular course of their business. Respondents had to know that their employees were operating plants for which they were not certified. Respondents' contention that all irregular practices originated with Wayne Dampier, and that they knew nothing about them until they met with the Department in June 1990 is undermined by the testimony of Lowell Polk. Mr. Polk was an employee of Respondents for a nine-month period during 1988. At that time, Mr. Polk was certified in water treatment plant operation only, not wastewater plants. 3/ While employed, Mr. Polk told Judy Devores that Wayne Dampier had asked him to operate a wastewater treatment plant when Mr. Polk was not certified as a wastewater treatment plant operator. Ms. Devores replied "don't worry about it, just do it." He did so, until he was discovered by the Department, and then told Ms. Devores that he did not want to do it anymore. This incident exemplifies the casual attitude the Respondents had toward regulations governing their business. The Department has established by clear and convincing evidence the allegations of Count III of the Amended Complaint. During calendar year 1990, Respondents employed Danny Runyan, a person uncertified in either water or wastewater treatment plant operation, to fulfill certified operator requirements at water and wastewater treatment plants, a practice which can result in a threat to public health. Raven Parc - No Certified Operator Jerry Toney inspected the Raven Parc water treatment plant on February 16, February 19, February 20, February 21, February 22, and February 23, 1990. Through February 23, 1990, there were no entries in the on-site operation and maintenance log. The absence of entries indicated no visits by an operator on any of those days. When he inspected again on February 26, 1991, all the data had been backfilled by someone using the initials "J.D." as certified operator. Danny Runyan admitted that although he was the de facto operator of the Raven Parc plant, he did not visit the Raven Parc water treatment plant during the period from February 16 through February 23, 1990. The Department has established by clear and convincing evidence the allegations of Count II of the Complaint that no certified operator, or indeed any operator, visited the Raven Parc water treatment plant during the period from February 16 through February 23, 1990. Use of an individual to provide operator services at a water treatment plant who is uncertified, and failure to provide any operator coverage at all for a week each constitute serious inattention to operations which could result in a hazard to public health. Raven Park - Backfilled O & M Log, False Use of Initials Certified operators are under a duty to "maintain an operation and maintenance log for each plant . . . current to the last operation and maintenance performed . . . . The log, at a minimum, shall include . . . the signature and certification number of the operators." Rule 17-602.360(1)(e), Florida Administrative Code. It is the practice in the industry for certified operators to initial rather than fully sign each entry in the O & M log. Mr. Runyan entered the initials of Judy Devores, a certified operator, after the fact in the O & M log for February 16, 19, 20, 21, 22 and 23, 1990. Mr. Runyan "backfilled" and used the initials "J.D." at the instruction of Respondents. Respondents' denial that they ever instructed Mr. Runyan to use their initials and backfilled O & M logs is not credible in light of Mr. Runyan's admission and the corroborating testimony of John Canard, who also testified that he was instructed by Paul Ayers to backfill O & M logs. The Department has established by clear and convincing evidence the allegations of Count II of the Amended Complaint that a certified operator initials, namely Judy Devores' initials, were "backfilled," or entered after the fact, at the Raven Parc plant during February 1990. This was done with the knowledge and approval of Respondents. The practice of "backfilling" is contrary to standard operating practice for water treatment plant operators. Raven Parc - Inadequate Chlorine Residuals When Jerry Toney visited the Raven Park plant on February 7, February 14, February 22, February 23, and February 26, 1990, he took chlorine samples and found inadequate chlorine residuals, that is, a free chlorine residual of less than 0.2 milligrams per liter (mg/1). Chlorine residuals are an assurance that no biological or bacteriological contamination will taint the water supply. The readings were taken after Mr. Toney had "flushed" the system at full tap for three minutes, which is a remedy for a low chlorine residual. Chlorine residuals in treated water can vary over the course of time, and a reading taken by a Department inspector on a particular day might not match exactly the chlorine residuals obtained by an operator at a different time on the same day. Rule 17-550.510(6)(d), Florida Administrative Code, requires "a minimum free chlorine residual of 0.2 milligrams per liter or its equivalent throughout the distribution system at all times." On February 7, 14, 22, 23 and 26, 1990, the chlorine residuals documented by Jerry Toney at the Raven Parc Water Treatment plant did not meet the requirement of Rule 17-550.510(6)(d), Florida Administrative Code. These inadequate chlorine residuals on February 22 and 23, 1990, the dates alleged in the Amended Complaint, were a direct result of gross neglect by Respondents in the operation of the plant, by failing to visit it over an extended period of time, and resulted in a condition which was a potential public health hazard. This aspect of Count II of the Amended Complaint has been established by clear and convincing evidence. Raven Parc - Falsified Chlorine Data Rules 17-550.730(1) and 17-601.300(1)(a), Florida Administrative Code, require monthly operating reports to be submitted to the Department for drinking water treatment plants and wastewater treatment plants. With regard to water treatment plants, and specifically, the Raven Parc water treatment plant, it was the practice of Paul Ayers Utilities, Inc., to keep a "Drinking Water Treatment Plant Daily Operation Summary" worksheet [DER Form 17-1.208(5)] at the plant on which to record certain measurements such as flow, pH and chlorine residuals. The Daily Operation Summary worksheet is also known as an MOR (monthly operating report) worksheet. At the end of each month, the MOR worksheets would be brought into the office, where the information on the worksheet would be transferred to the "official" monthly operating report [DER Form 17-555.910(2)], which would be signed by the lead operator to certify to its accuracy and sent to the Department. The information on the worksheets was the best and most accurate information available for flows, pH, and chlorine residuals on any particular day. The chlorine residual values certified to the Department by Ms. Devores for February 19, 21 and 23, 1990, are different than the values recorded in the on-site MOR worksheet. The on-site entry for each of those days shows the chlorine residuals (in mg/1) were 1.0 at the plant and 0.3 at the remote tap each day, but the MOR as submitted shows 1.8 and 0.8 respectively on those days. These MOR entries are false. Department Exhibit 4, the certified MOR for Raven Parc for February 1990 signed by Ms. Devores, shows that the entries for February 6, 9, 12 and 16, 1990, have been whited-out and reentered. The original entries on Department Exhibit 4, the certified MOR, had higher values than recorded on Department Exhibit 3, the MOR worksheet. Those higher values had originally been entered to satisfy the concerns expressed by Jerry Toney in a note left on the Raven Parc MOR worksheet on February 16, 1990: "Judy, the DER classifies .3 - .4 chlorine as 'marginal.' We would like to see it higher. Also, the system requires a weekend visit. Thanks, Jerry 878-3890" (Department Exhibit 3). The higher values were whited-out and changed back to the lower values actually recorded on the on-site MOR worksheet, because Respondents realized that Mr. Toney had seen the on-site MOR worksheet for all dates up to February 16, 1990, when he made the dated notation on the worksheet. This conclusion is supported by the appearance of the document itself and by Donna Anderson's testimony that, while she generally transferred the information from the MOR worksheet to the MOR for submission to the Department, she never whited-out data on an MOR, and that she did not do so in this instance. Ms. Anderson testified that after she had typed in the MOR header information and transferred data from the MOR worksheet, it was routine practice for Respondents to take the MORs and "fill in for days that were missing." All of the chlorine values recorded and reported on the official form fall within acceptable values established in Rule 17-550.510(6)(d), Florida Administrative Code. This is not surprising, since they were all made up at the time they were backfilled on the worksheet. Danny Runyan admitted that he did not actually visit the plant during the period from February 16 to February 23, 1991, Findings 23 and 24, above. All information recorded for those days on both the MOR worksheet and the MOR submitted to the Department were fabricated. The evidence clearly and convincingly establishes that the chlorine data on the MOR submitted to the Department for the Raven Parc water treatment plant for February 16-23, 1990, and certified by Ms. Devores as correct, were knowingly falsified. The Department has proven the allegations of Count VII of the Amended Complaint. Raven Parc - Falsified Flow Data Judy Devores and Paul Ayers respectively signed and submitted the February 1990 and March 1990 MORs for Raven Parc. They each reported at least twenty-four daily entries of "Total Water Treated in Gallons," that is, flow of treated water. It was admitted that the flow meter at Raven Parc was inoperative. By tracking the amount of time a water pump operates with an elapsed time clock, an operator may calculate flows of treated water. An elapsed time clock was installed at Raven Parc at some point. The issue raised by the Department is whether the elapsed time clock was available and used to calculate the treated water flows certified by Respondents in February and March 1990. Respondents claimed that an elapsed time clock was installed at Raven Parc on February 8, 1990. In support of this contention, Respondents offered a photocopy of a work order in Danny Runyan's handwriting, indicating the installation of an elapsed time clock at Raven Parc. The date on this document is obscured and cannot be read. Even Paul Ayers had trouble trying to decipher a date on the exhibit at the hearing (Respondent's Exhibit 25). Jerry Toney in February 1990, and Wes Upham and Jerry Toney together, on June 25, 1990, looked for an elapsed time clock at the Raven Parc water treatment plant found none. Mr. Runyan and Mr. Dampier both testified that the elapsed time clock was installed "in June" and "after the meeting with the Department," which took place on June 25, 1990. Ms. Anderson also believed that elapsed time clock was installed in June, although she was "not sure." Her belief is consistent with the testimony of Mr. Runyan and Mr. Dampier. Taken together, this testimony is highly persuasive. Mr. Runyan testified that he was instructed by Wayne Dampier to put the time clock "at the breaker panel in the top part of the panel under the top of the lid" because "they didn't want DER to see it." Mr. Dampier admitted relaying instructions from Paul Ayers to "put it in an inconspicuous area to where it wouldn't be as noticeable so if the DER come out looking for it they wouldn't find it just right offhand." Determining water flows by the use of an elapsed time clock requires multiplication of the time the water pump was operating by the capacity of the pump. Neither the MOR worksheet, nor the O & M log for Raven Parc contained such calculations. Even according to Mr. Ayers' contentions, the elapsed time clock was not installed until February 8, 1990, at the earliest. The MOR submitted to the Department for February 1990, signed by Judy Devores, includes entries for "Total water Treated in Gallons," i.e. flow, for February 1, 2, 3, 5, 6 and 7, 1990, as well as for the rest of the month. It has already been established that no one visited the plant between February 16 and February 23, 1990, but flows are entered for February 16, 17, 19, 20, 21, 22 and 23, 1990. (Department Exhibit 4). These facts wholly undermine the claim that flow was measured by an elapsed time clock and accurately recorded and certified to the Department by Respondents. Viewing the evidence as a whole, the Department has presented clear and convincing evidence to establish the allegations of Count VI of the Amended Complaint, that no means to measure or to estimate flow data was available at Raven Parc during this period. The flow data submitted on the Raven Parc MORs for February and March 1990, by Paul Ayers and Judy Devores were falsified. Raven Parc - Failure to Fulfill Duties of "Lead Operator" On June 25, 1990, the Department and Judy Devores met to discuss the operation of Raven Parc plant. At that meeting, Ms. Devores stated that she did not operate the Raven Parc plant, and in testimony, Ms. Devores stated she did not visit Raven Parc. Ms. Devores signed the Raven Parc MOR for February as lead operator, however, and the initials "JD" are the only initials which appear on the Raven Parc O & M log for February 1990 (Department Exhibits 1 and 4). Ms. Devores exhibited a lack of familiarity with the actual conditions at Raven Parc during the June 25th meeting. This was inconsistent with a person who properly functioned as its lead operator. According to the Department's expert, the lead operator is "the individual with the most knowledge of the workings of that treatment plant and its condition at any given point in time." (Tr. Day 1, p. 69) At a minimum, a lead operator personally should provide once-a-week on-site supervision to a certified operator, and should never delegate the operation of a water treatment plant to an uncertified operator. Danny Runyan was the de facto operator of the Raven Parc plant, and admitted that he did not visit the plant from February 16 through February 23, 1990. Rule 17-602.200(11), Florida Administrative Code, defines "lead or chief operator" as "the certified operator whose responsibilities include the supervision of all other persons who are employed at a plant, performance of on- site treatment plant operation and whose responsibility it is for the effectiveness and efficiency of the overall treatment plant operation." While Ms. Devores may not have ever gone to the plant, she was responsible for its operation as the lead operator, and should have done so. The Department has presented clear and convincing evidence to substantiate the allegations of Count IX of the Complaint that Judy Devores did not fullfil the duties of a lead operator for the Raven Parc water treatment plant. Raven Parc and Moose Lodge - O & M Log Falsification The Loyal Order of Moose #248 water treatment plant is located in Fort Pierce, and is 12.0 miles away from the Raven Parc plant. Travel between the two plants takes approximately 20 minutes. An operator with the initials "JD" arrived at each plant on February 20, 1990, at 4:15 and left each plant at 4:30, according to the O & M logs at each of the two plants. Similarly, on February 22, 1990, "JD" left the Moose Lodge at 4:30 and arrived at Raven Parc at 4:30. The handwriting on the logs appear to be the same, but the initials do not appear to be in the handwriting of Judy Devores. (See the signature on Department Exhibits 4 and 16, and the initials in the entries for August 21 to August 25 on Department Exhibit 33.) The O & M logs for Raven Parc and Moose Lodge are documents required to be kept by the operator "current to the last operation and maintenance performed." Rule 17-602.360(1)(e), Florida Administrative Code. They are falsified for February 1990. The facts alleged in Count VIII of the Complaint are true. The false O & M log for Raven Parc for February 1990, was maintained by Danny Runyan, with the authorization and under the direction of Judy Devores. Other Falsified O & M Logs The Amended Complaint alleged in Count X that initials of Judy Devores were entered in O & M logs for days she did not visit facilities, and could not have visited facilities because she was out of town. Specific instances are tabulated below: JUDY DEVORES Big O WWTP July 18, 1990 (10-10:30 AM). Glendale Commons WTP July 1990: 18th (3-3:30 PM) 23rd - 25th, 30th and 31st, August 1990: 1st, 2nd, 3rd, 6th, 9th, 10th, 13th and 14th. Johnnies Restaurant WTP June 11th and 12, 1990. Pier II Motel WWTP July 18th, 1990 (10-10:25). Rainbow Trailer Park WTP July 24th and 27th, 1990. Zachary Taylor WWTP July 18th, 1990 (12:15 - 12:45 PM). The Department introduced at hearing copies of the relevant O & M logs (Department Exhibits 27 through 35), and airline ticket receipts which show that the Respondents were out-of-state on the relevant dates (Department Exhibits 24 through 27), and the testimony of Danny Runyan, who admitted that he had signed those O & M logs. Judy Devores characterized Danny Runyan's testimony as erroneous. She was not sure whether or not she used the ticket introduced as Department Exhibit 25, and maintained that she used the ticket introduced as Department Exhibit 26, but left on July 19, 1990, rather than July 18, the departure date noted on the ticket receipt. Judy Devores also asserted that she went to all five plants listed in paragraph 21 of the Amended Complaint as having been visited by "J.D." on July 18, 1990 because "Wayne was on vacation. Paul and I had to cover the plants." She could not blame Wayne Dampier for false entries on those days. She swore that she went to the West Palm Beach airport and "missed the plane" scheduled to leave at 9:34 a.m. on July 18, 1990, and by 10:00 a.m., after having taken the time to make arrangements to pay an extra $75.00 and be reticketed for a next-day departure, arrived at the Big O water treatment plant in Okeechobee County (Department Exhibit 29). This is not believable. Ms. Devores would have had to miss both flights (or used neither of the non-refundable tickets offered as Department Exhibits 25 and 26) in order to establish her presence at the various water and wastewater treatment plants on the dates her initials appear. Ms. Devores hinted, but offered no proof, that Wayne Dampier falsified initials on O & M logs, presumably to get them in trouble. The testimony of Judy Devores is not credible, and her evidence inadequate to overcome the Department's proof, especially in light of Danny Runyan's admission. The initials entered showing Judy Devores performed services at the facilities listed in Finding 63 above are false. The allegations of Count X have been proven by clear and convincing evidence. Falsified BOD and TSS Data The Department's Amended Complaint alleged in Count IV that during calendar year 1990, Respondents reported biochemical oxygen demand (BOD) and total suspended solids (TSS) data in the wastewater treatment plant MORs for the Town & Country wastewater treatment plant and other facilities operated by them, for which no analyses were performed. BOD and TSS and measurements of the treatment efficiency of wastewater plants, and maximum counts for BOD and TSS are established by the Department in Rule 17-600.420, Florida Administrative Code, which sets minimum treatment standards. Measuring and reporting BOD and TSS values is required for the protection of public health. Rule 17-601.300, Florida Administrative Code, requires monthly monitoring and reporting of BOD and TSS. The MOR, which is the reporting format for BOD and TSS, must be signed by the "lead operator in charge of operating the treatment facility." While the Rule imposes a duty on "wastewater treatment facilities" to monitor effluent for compliance with the rules, the common practice in the industry is for the operator to be responsible to collect samples, forward the samples to a laboratory for analysis, receive the lab report and report the laboratory results to the Department. Respondents did not deny that monitoring of BOD and TSS was part of the operating services they had contracted to perform. In support of the allegation that BOD and TSS analyses were not done, the Department submitted MORs for each month in 1990 for six wastewater treatment plants: Town and Country Mobile Home Park, Big O RV Park, Four Acres Mobile Home Park, Motel Pier II, Taylor Creek Lodge, and Zachary Taylor RV Camp (Department Exhibits 19a-19f). Each of these MORs has a value entered in the space labeled "BOD (mg/1) EFFLUENT" and "TSS (mg/1) EFFLUENT." All are signed by Paul Ayers or Judy Devores. In the course of discovery, the Department asked Respondents in deposition which laboratories Respondents used for analysis of BOD and TSS. The labs identified as performing analyses for Respondents were East Coast Laboratories, Bioservices, and Envirometrics, with Envirometrics being the lab mainly used. Affidavits from the directors of Bioservices and East Coast Laboratories indicate that neither of those laboratories performed any BOD or TSS analyses for Respondents. 4/ Proof of the non-existence of reports by those labs is admissible under Section 90.803(7), Florida Statutes (1991). The Department subpoenaed and copied the records of Envirometrics, and Francisco Perez prepared a summary of the documents, which the director of the laboratory confirmed in an affidavit to be accurate, with certain corrections. The summary shows only 11 rather than 72 instances of lab analyses (six plants times 12 months of MOR entries) for the plants listed in Finding 75: Big O - 2; Town & Country - 2; Four Acres - 2; Motel Pier II - 3; Zachary Taylor - 2; and Taylor Creek Lodge - 0. While Donna Anderson was employed, there was no procedure for collecting monthly effluent samples from the approximately 21 wastewater treatment plants operated by Respondents. Ms. Anderson did not receive regularly 21 sets of lab reports for BOD and TSS, and she saw no evidence at Respondents' office/home that 21 sets of such samples routinely were being collected, stored, or delivered to any laboratory for analysis. John Canard and Danny Runyan each testified that they did not regularly collect effluent samples from wastewater treatment plants they maintained. Applying the standard of clear and convincing evidence, the Department has proven that the BOD and TSS analyses were not performed, although both Paul Ayers and Judy Devores certified they had been in Department Exhibits 19a-19f. The Department's evidence is not rebutted by Respondents' bare assertions, with no supporting documentation, that the required laboratory analyses were performed. Their refusal to identify the lab or lab technician they maintain ran the tests for them renders their testimony highly suspect, and the evidence of other falsifications make their testimony unbelievable. See Finding 130(a), below. Falsified Bacteriological Data Rule 17-550.510(6)(b), Florida Administrative Code, requires at least monthly monitoring of each regulated water system for coliform bacteria (bacteriologicals). One representative raw sample and two samples from the distribution system (sometimes identified as remotes) are required. Rule 17- 550.730(1)(a), Florida Administrative Code, requires monthly reporting of the bacteriological results to the Department. Respondents undertook the sampling and reporting requirements as part of their operating service agreements but did not follow appropriate sample collection methods. Wayne Dampier, Danny Runyan, and Donna Anderson each testified that for the month of October 1990 unlabeled samples were brought into the office, and Paul Ayers, Danny Runyan and Donna Anderson assigned arbitrary and false identifications to the bacteriological samples, identifying them as various facilities operated by Paul Ayers Utilities, Inc. These falsely labelled samples were then submitted to a laboratory for analysis and the results were reported to the Department. The practice of intentionally submitting mislabeled bacteriological samples and reporting false results constitutes submission of fraudulent data, gross neglect in the performance of the duties of a certified operator which can result in adverse public health consequences, and violates standard operating practice for plant operators. Paul Ayers simply denied that he ever collected samples from one location or misalabeled unlabeled samples, and called Donna Anderson's testimony untrue. This testimony is not credible. The allegation of Count XI of the Amended Complaint, that bacteriological samples were mislabeled during the month of October 1990 to seem to have come from other treatment plants, has been proven by clear and convincing evidence. Floresta Elementary - Inadequate Operator Visits The Amended Complaint alleged in Count XII that Respondents failed to provide the Floresta Elementary School water treatment plant the required five visits per week plus one weekend visit for the period from August 22, 1990, through April 23, 1991. The Department offered copies of the on-site O & M log for the relevant period showing inadequate coverage (Department Exhibit 39), and the testimony of Wes Upham. A letter from the school, dated July 26, 1991, states that "Present Operator Paul Ayers Utilities states they have been operating the plant at least 5 days per week for the past several months since Department notice to that effect." The "Department notice" referred to is the notification Wes Upham gave to the school board after his inspection on April 26, 1991. From April to July is "several months" of five day per week operator coverage. The letter does not establish adequate operator coverage for the period at issue: August 22, 1990, to April 23, 1991, and so does not exonerate Mr. Ayers. Kevin Prussing serviced Floresta Elementary for Paul Ayers Utilities, Inc. He was asked by counsel for Respondents whether Paul Ayers called him in April of 1991 to tell him to start going to visit Floresta. Mr. Prussing replied that he did not remember the exact date, but it was after "the question came up about how many visits" and after "it was settled amongst Paul and whoever. . . " (Tr. Day 2 p. 179), which was after the Department's Notice of Noncompliance dated July 10, 1991, was sent to the school board. Paul Ayers did not deny that prior to April 23, 1991, operator coverage was less than five day per week plus one weekend visit. He asserted that his company entered into a contract with the school board which called for three day per week coverage, and that prior to plant modifications in August 1990, only three day per week coverage was required for the Floresta Elementary School water treatment plant. Mr. Ayers acknowledged that he knew five days per week with one weekend visit was required after the plant modifications were completed in August 1990, and that he informed a representative of the school board of that fact. Mr. Ayers claimed that the school board representative refused to pay for additional operator coverage until he was notified by the Department of increased operator coverage requirements. The Department established through the testimony of Rim Bishop, Wes Upham and Kevin Prussing that a licensed operator and the owner of a water treatment plant each have an independent responsibility to know and comply with the plant coverage requirements, which are designed to protect public health. Both Rim Bishop and Kevin Prussing, certified water treatment plant operators, testified that they would not accept a customer who wanted them to provide less than the required operator coverage. The Invitation to Bid circulated by the school board on May 9, 1990, to which Paul Ayers responded on May 23, 1990 (Department Exhibit 37), has a set of "Special General Conditions," which include the following for Floresta Elementary School: "Provide service for both water and wastewater treatment plants, as required by current DER regulations." This specification indicates that the school board intended the operator to make the judgment about appropriate operator attendance requirements. No specific number of days was required in the school board's bid documents. Other operating companies (not including Respondents) contacted the Department to find out how many visits per week would be required at Floresta. For some time before completion of the modifications to Floresta Elementary's system, the school's water supply was such a problem that the school board was required to supply bottled water for cooking and drinking, and to post warnings that bathroom water was not potable. From the time Mr. Ayers became the operator of the Floresta Elementary School water plant, he knew or should have known that water quality was a problem and that extensive treatment modifications were forthcoming. The plant's system, as modified in August 1990, included aeration, gas chlorination, multimedia filtration and ion exchange softening. Proper operation of this system requires blending of raw and treated water. Andrew Helseth, the plant engineer, pointed out that this plant "was only the second one that has had filters and softeners on it". Kevin Prussing, the current operator of the Floresta plant, testified that the plant modifications caused the plant to be "unusual" and "pretty complex" and stated that the engineer was still "very heavily" involved in making corrections. The O & M logs for Floresta Elementary School indicate a period in early 1991 when the plant was visited only twice a week by Respondents. An examination of the O & M logs show that during the week of February 24 to March 2, the plant was visited only twice; from March 3 to March 9 only once; from March 17 to March 23 twice; from March 24 to March 30 twice. The plant was not visited at all from February 28 to March 9, 1991, a period of nine days. This plant is located at a public elementary school. It had a history of water quality problems, and the unique combination of treatment processes. It was gross negligence for an operator to provide less than the three visits per week arguably covered by contract, and less than the required coverage of fives days plus one weekend visit which Mr. Ayers acknowledged, and to leave the plant unattended for nine days. Respondents' claim that the owner of the facility is responsible for ensuring operator coverage is inadequate to overcome the Department's clear and convincing proof with regard to Count XII of the Amended Complaint, that Paul Ayers failed to provide the required operator coverage at the Floresta Elementary School water treatment plant between August 22, 1990, and April 23, 1991. Floresta Elementary - Monitoring Requirements It is essentially undisputed that Respondents failed to monitor the Floresta Elementary plant on each visit for turbidity and water hardness at the water's point of entry into the system, and failed to measure on each visit the raw, bypass and finished water flows. In their defense, Respondents showed that there is no specific permit requirement or rule which mandates such monitoring. The Department established by clear and convincing evidence, including the testimony of Rim Bishop, Wes Upham, Kevin Prussing and Andrew Helseth, and the construction permit issued for the Floresta Elementary School water treatment plant (Department Exhibit 38) that this monitoring is essential to the operation of this type of plant, which includes mixed media filtration, ion exchange and raw water blending, and which had a history of water quality problems. The modifications to the Floresta plant included a turbidometer and additional flow meters beyond the normal flow meters, but Mr. Ayers contended that the presence of this additional monitoring equipment did not imply that additional flows for which gauges had been installed should be measured. Standard operating practice in the industry would indicate to a operator exercising ordinary care in performing his duties that such measurements must be taken. The Amended Complaint further alleged in Count XIII that Respondents failed to monitor monthly for nitrate, chloride, pH, specific conductance, total dissolved solids and fecal coliform, as required by specific condition 13 of the Floresta water treatment plant construction permit (Department Exhibit 38). This allegation was not denied. Paul Ayers defended his conduct by contending that the school board was responsible for the failure to monitor, even though the Invitation to Bid states: "Special General Condition (A). Floresta Elementary (B). Perform all analysis on water and wastewater as required by current D.E.R. regulations" and "General Conditions (2). Contractor agrees to sub-contract laboratory analysis on samples in accordance with the analytical procedure acceptable to the Department of Environmental Regulations (sic)" Mr. Ayers' own bid response states "The charge for the above-described services per school will be, Floresta Elementary water $310, waste water, $210 per month to include all DER required lab analysis and labor service as described herein" (Department Exhibit 37). Standard operating practice requires that a water treatment plant operator be familiar with the terms of a plant's permit, and operate the system in compliance with the permit's terms. Even if the school board had an independent duty to assure compliance with the special monitoring requirements set out in Specific Condition 13 of the construction permit, Paul Ayers failed to comply with standard operating practice with regard to these monitoring requirements. The allegations of Count XIII have been proven by clear and convincing evidence. Failure to Supply Chlorine at Armadillo Warehouse The Amended Compliant alleged in Count XIV that Respondents failed to supply chlorine to the Armadillo warehouse water treatment plant after becoming aware that its on-site cholrine reservoir was empty, which caused an inadequate chlorine residual. The Department's evidence on this count included testimony from Francisco Perez, Donna Anderson, Wayne Dampier and Lowell Polk. Lowell Polk testified that he was given a list of plants to operate, which included the Armadillo plant. Despite his efforts during four or five visits to the plant, he "could not get satisfactory operation out of the [chlorine] feed pump." (Tr. Day 2 p. 141-142) As a result, "There was no chlorine in the water" (Tr. Day 2 pp. 141 and 149). Mr. Polk informed Ms. Devores about the inadequate chlorine situation, and she told him "don't worry about it." The plant was so small it did not fall under the jurisdiction of the Department, but was supervised by the local county public health unit. Respondents maintain that they had no contract to provide operator service, and that their only responsibility at Armadillo was "for a monthly bacteriological to be picked up" according to Ms. Devores (Tr. Day 2 p. 206), although Mr. Ayers believed it was a "quarterly sample" (Tr. Day 2 p. 258) for the public health unit. Despite the appearance of the Armadillo warehouse in Lowell Polk's list of plants to be serviced, the evidence about the contractual obligation of Respondents to provide any services to the Armadillo warehouse is too vague to support a finding that Respondents failed to perform services they had agreed or were required to perform for the public health unit. The Department has failed to prove the allegations of Count XIV of its Amended Complaint. Port St. Lucie Convalescent Center Count XV alleges that no operator certified in wastewater provided the minimum number of visits to the Port St. Lucie Convalescent Center wastewater treatment plant during the period from approximately June 1, 1989, through November 30, 1989. At the hearing, Lowell Polk, an operator certified in water only, testified that he operated the Port St. Lucie Convalescent Center plant during the period that he worked for Respondents, which was in 1988, not 1989. Mr. Polk's testimony does not support the allegations of Count XV, since that count specifically alleged misconduct by Respondents during 1989. Mr. Polk's testimony tends to corroborate, to some extent, the allegations of Count III, that uncertified operators were used by Respondents, and negates Respondents' assertions that they were unaware that any plants were being operated by uncertified operators. Mr. Polk told Judy Devores that Wayne Dampier asked him to operate a plant for which he was not certified, and Ms. Devores responded, "don't worry about it, just do it." (Tr. Day 2 p. 140) The Department has failed to prove the allegations of Count XV of its Amended Complaint. Costs The Department incurred costs and expenses in its investigation of the violations alleged in the amount of $15,512.60, which it seeks to recover in Count XVI. GENERAL OBSERVATIONS ABOUT THE EVIDENCE Respondents have attempted to impeach the credibility of Donna Anderson and Wayne Dampier as witnesses against them, alleging bias. They claim Ms. Anderson was fined because she had been embezzling funds from petty cash, and Mr. Dampier was personally responsible for improprieties alleged by the Department. Both witnesses, according to Respondents, are lying because they are disgruntled ex-employees. Danny Runyan, another ex-employee, admitted lying under oath during a deposition taken while he was still employed by Respondents, and explained that he lied under instructions from Respondents in order to keep his job. I have listened to the testimony, read the transcript, examined the documentary evidence and considered the various allegations of interest, motive and bias. I have observed the witnesses and evaluated their opportunity to have observed the matters they testified about, their ability to remember the facts, their ability to articulate details of their recollection, and any reason they had to shade or avoid the truth. Based on these observations and review of the record, I find that the evidence offered by Ms. Anderson, Mr. Dampier and Mr. Runyan are for the most part corroborated by testimony from John Canard, Kevin Prussing and Lowell Polk; by testimony from Department employees; and by exhibits offered by both parties. Mr. Dampier, Mr. Canard and Mr. Polk all admitted misconduct involving activities which could jeopardize their treatment plant operations certificates, with no evidence of any "grant of immunity" or agreement by the Department not to take enforcement action against their certifications. I simply do not believe that Ms. Anderson, Mr. Dampier and Mr. Runyan have perjured themselves for the purpose of revenge, or for any other reason. Many details in the testimony, while not alleged as to specific counts, and which do not in themselves support a finding of gross neglect in treatment plant operations, tend to corroborate the Department's specific allegations about false entries in required reports. For example, Donna Anderson said Respondents had instructed her to "stagger between 6.8 and 7.2" the pH values as she filled out the MORs; Wayne Dampier testified that Respondents told him "definitely not to take a raw sample because its too likely they will flunk" and to "make sure you got a good chlorine residual so that the samples would pass." During cross examination, Donna Anderson remembered Respondents asked her "to put in times and dates and stagger information of these particular logs . . . They had me make up these so called O & M logs that were missing from plants. They didn't have any." This is consistent with the statement made by Respondents in their written response to the Department's Notice of Noncompliance. In paragraph 3, of Department's Exhibit 15, Respondents state: "When the laws concerning the O & M logs were enforced, Paul Ayers Utilities immediately complied." It appears that Respondents "immediately complied" by having Donna Anderson manufacture O & M logs. Past questionable reports submitted by Respondents offer some slight corroboration of the charge of false labeling of samples. In 1986, the Department was notified by an HRS laboratory that samples submitted by Respondents were questionable, in that all samples, although labeled from different plants, had the same coliform bacteria counts. Respondents were advised at that time to take care in the handling of samples, just as they were warned in 1986 that removal of components of a treatment plant was considered by the Department to be "gross neglect in the performance of duties as a certified operator." The evidence of the fraud in the samples the Department charged in the Amended Compliant is itself highly persuasive even without this evidence. Statements, admissions and actions by Respondents have undermined their own credibility. For example: Respondents alleged that the nonexistent BOD and TSS analyses had been performed by a "moonlighting" lab technician in Okeechobee County who had been paid in cash. This entire line of testimony was not credible and damaged Respondent's credibility generally. Ms. Devores testified that the initials "J.D." which appear on the Zachary Taylor plant O & M log (Department Exhibit 33) for August 21 through 26, 1990, are in her handwriting, and that the initials "J.D." which appear on the same document on the dates July 17 and 18, 1990, are also in her handwriting, even though the handwritings are distinctly dissimilar, and even though Danny Runyan admitted that he had entered the latter set of initials. This further undermined the trustworthiness of Ms. Devores' testimony. Respondents tried to implicate Wayne Dampier in the allegations involving Floresta Elementary School, but the Floresta allegations all relate to a time period after Wayne Dampier's employment had terminated. Ms. Devores was unable to explain how her initials, "J.D." appeared in the Big O Water Treatment Plant at 10 a.m., on 7-11-90, and simultaneously at the Pier II WWTP, except that she "didn't have on my watch". Similarly, she was unable to explain how her initials show her to be simultaneously at Moose Lodge and Raven Parc on February 20, 1990. Respondents were unable to explain why they never noticed that their initials repeatedly were being used at plants they contend they did not operate. Ms. Devores kicked and threatened Ms. Anderson with bodily harm when she saw Anderson in the hall of the Palm Beach County Courthouse during the proceedings (Tr. Day 2 p. 96-99).
Recommendation Paul Ayers' and Judy Devores' water and wastewater treatment plant operator certifications referred to in Finding 1 should be permanently revoked. They should surrender those certificates to the Department within thirty (30) days of the effective date of the final order. Respondents should no longer accept employment in a capacity requiring water or wastewater treatment certification nor represent themselves as holding such certifications. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 5th day of May 1992. WILLIAM R. DORSEY, JR. 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 5th day of May 1992.
Findings Of Fact Upon a consideration of the oral and documentary evidence adduced at the hearing in this cause, the following pertinent facts are found: 1/ By application number 25793, the applicant seeks a permit to construct and operate a proposed surface water management system to serve a 2,541 acre project within the St. Johns River Basin in Indian River County. The proposed system will consist of a perimeter dike, a central canal with interior laterals and four discharge pumps. The applicant will be discharging into the St. Johns Marsh and seeks a discharge capacity of 139,000 GPM. Three of the discharge pumps are to be located at the southeast corner of the property and a two-way 25,000 GPM pump is to be located at the intersection of the central canal and the western boundary of the property. By application number 25794, the applicant seeks a permit for the use of surface and artesian water for the irrigation of the same 2,541 acres of pasture and truck crops. The applicant requests to withdraw surface water from the St. Johns Marsh by means of a two-way 25,000 GPM pump located at the intersection of the central canal and the western property boundary and to withdraw water from the Floridan aquifer by means of eight eight-inch artesian wells. The amount requested is 5,294 acre-feet per year with a maximum monthly pumpage of 1.47 billion gallons. A staff report of the Central and Southern Florida Flood Control District (FCD) concluded that the major problem with the permit applications is the impact on water quality of the receiving bodies of water and that nutrients and other pollutants will be introduced into runoff waters discharged into the St. Johns Marsh, which is the source of the public water supply for South Brevard County. The staff therefore recommended that the applicant institute a water quality and quantity monitoring program to monitor discharges to the Marsh. The staff further recommended that the applicant not be allowed to discharge from the western property boundary nor irrigate from the ditch on the western property boundary. It was recommended that the two-way 25,000 GPM pump be installed adjacent to the other pumps located at the southeast corner of the property. More specifically, the staff found that if a permit were to be issued pursuant to application number 25793, it should be subject to the conditions that: the allowable discharge capacity to be 104,000 GPM, with discharges to be east to the St. Johns Marsh by means of one 44,000 GPM pump, one 35,000 GPM pump and one 25,000 PM two-way pump to be located at the southeast corner of the property; the applicant notify the FCD prior to any excavation of materials from land lying east of the east property boundary and, if such excavation is done, a discontinuous borrow ditch be created by either leaving 25 foot portions of undisturbed marsh or by placing 25 foot earthen plugs at approximately 500 foot intervals (this was later modified at the hearing to 1,000 foot intervals); and the applicant submit monthly reports of total daily discharges and water quality, the samples to be taken at the southeast corner of the property. With regard to application number 25794, the staff recommended that if such permit were to be issued, it be subject to the following conditions: for the use of surface water, an annual allocation of 2329.3 acre- feet per year and for the use of artesian water, an annual allocation of 2518.5 acre-feet per year, with a maximum monthly pumpage from all sources of 355.3 million gallons; no withdrawal of surface water from the St. Johns Marsh when the water level in Blue Cypress Lake drops to 22.0' msl.; surface water to be withdrawn by means of a 25,000 GPM two-way pump located at the property's southeast corner; artesian waters to be withdrawn by eight eight-inch wells with effective and operative controls placed thereon and analyses of water samples from the water discharge of each the submission of monthly reports of total monthly pumpages and total monthly flows; and permit for the withdrawal of surface and artesian water to expire on January 15, 1979. At the hearing, the applicant agreed to the recommended conditions placed upon the permits by the staff report with the exception of: the amount of the allowable discharge (staff recommending 104,000 GPM as opposed to a desired 139,000 GPM); the location of the 25,000 GPM two-way pump (staff recommending southeast corner as opposed to a proposed site on the western boundary of the property); the expiration date of January 15, 1979. The Environmental Protection Bureau of the Florida Game and Fresh Water Commission requested the FCD to delay issuance of permits for all projects in the Upper St. Johns River basin until a comprehensive water management plan for the area is formulated. Read into the record was a resolution adopted by the Commission on May 16, 1975, recommending that "the further destruction of the marsh be curtailed and a plan be formulated for the return of the diverted waters as a management tool for restoration of fish and wildlife resources." On behalf of the Florida Audubon Society, Mr. Charles Lee contended that, because of this resolution and request of the Game and Fresh Water Fish Commission and that agency's constitutional status, the FCD is precluded from issuing the subject permits. Intervenors and members of the general public who were opposed to the issuance of the instant permits expressed the following concerns: the low water quality and quantity of the St. Johns River and its marshes; the decline in hunting and fishing because of agricultural activities in the St. Johns River valley; the loss of marsh land due to agricultural activity; the lack of a basic water management program for the area; the lack of remedial measures should degradation of the water occur; and the lack of an expiration date for the surface water management system permit.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is the recommendation of the hearing officer that application numbers 25793 and 25794 be granted, subject to those special conditions set forth in the Staff Report as modified by the following: In paragraph number 3 on page 14 of the Staff Report, substitute the words "1,000 foot intervals" for "500 foot intervals;" Add as paragraphs 6 on page 15, paragraph 6 on page 16 and paragraph 7 on page 18 the following: "Should the data in the monthly reports submitted by the applicant indicate the occurrence of a degradation of the waters utilized, the applicant will be required to remedy the situation causing the de- gradation." Add as paragraph 7 on page 15 the following: "7. This permit shall expire on January 15, 1979." Respectfully submitted and entered this 25th of March, 1976, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
The Issue The issue for consideration at the hearing was whether the Respondent, Roger Harloff, should be issued a consumptive use permit to withdraw and use ground water from the wells on his property, and if so, in what amount and under what conditions.
Findings Of Fact Respondent, Roger Harloff, owns several farms in southeastern Manatee County, Florida which, taken together, make up an irregular 8,500 acre tract located approximately 2 1/2 miles north of the City of Sarasota's Verna Wellfield. Mr. Harloff grows vegetables on much of this tract, of which approximately 1,500 acres is devoted to tomatoes. This tomato crop is the prime crop produced by Mr. Harloff, and provides the raw material for the Harloff packing plant which is dependent upon the tomato crop in order to stay in business. Mr. Harloff also operates a plant nursery at which he produces many if not most of the seedling plants utilized in his vegetable growing operations. In order to be economically feasible and remain operative, Mr. Harloff must farm approximately 3,800 acres during the Spring growing season and approximately 3,000 acres during the Fall. These acres are made up of tomatoes and other vegetables. The packing plant and the plant nursery are dependent upon the farm operation and without adequate water, the farm operation cannot be successfully carried on. In September 1988, Mr. Harloff applied to the District for a consumptive use permit to withdraw water from twelve wells located on his property, requesting an annual average rate of 12,995,606 gpd, and a maximum daily rate of 47,520,000 gpd. The consumptive use permit application filed by Mr. Harloff was assigned District Number 204467.04. After evaluation of the application in conjunction with its needs and policies, the District issued a staff report and proposed agency action on the application which recommended issuance of the permit authorizing water to be drawn from the 12 wells at a rate approximating that requested in the application. Thereafter, the City of Sarasota, which operates the nearby Verna Wellfield, considering that the proposed withdrawal would have a substantial adverse impact on its wellfield operations, filed a Petition for Formal Administrative Hearing objecting to the issuance of the permit to Mr. Harloff. Though Mr. Harloff has owned much of the property which make up the 8,500 acre tract in question here, at the time of his application, he did not own, but had under contract, a substantial portion. He closed on the purchase of that remainder after he received notice of the District's intention to issue the permit in question but prior to the City's filing its Petition For Formal Hearing. The purchase price of the property in question was $9,000,000.00 which carries an interest payment on the financed portion of $52,000.00 per month. The wells pertinent to the issues in this proceeding are as follows: # Cons. Depth Cas. Lin. Diam. Cap. Loc. 1 1978 1185' 200' 220-490' 12" 2000 gpm SE 2. 1988 1320' 210' 210-480' 16" 3000 gpm SE 9. 1974 1130' 390' 16" 3000 gpm C 10. 1976 1232' 231' 283-400' 16" 3000 gpm NW 11. 1979 1120' 210' 260-480' 12" 2000 gpm NW 12. 1976 1180' 480' 12" 2000 gpm SW 3. 1989 1434' 460' 16" 3000 gpm SE 5. 1989 1374' 610' 16" 3000 gpm W 8. 1989 1292' 548' 16" 3000 gpm NW 13. 1989 1310' 635' 16" 2000 gpm NE Well No. 8 was used as the pump test well for the constant rate discharge test and Well No. 13 was the deep observation well for that test. Wells 1, 2, 9, 10, 11, and 12 have all been previously permitted by the District and No's 1, 2, 9 and 10 are currently permitted under two other permits, while 11 and 12 were permitted under a different permit. Wells No. 3, 5, 8 and 13 have been authorized for construction but not, as yet, to produce water. Wells 4, 6 and 7 have not yet been constructed. The intention is to drill them to a depth of 1,300 feet and case them to 600 feet. Each will have a pump capacity of 3,000 gpm. Number 4 will be in the southeast portion of the tract, number 6 in the central portion, and number 7 will be located just north of number 6. Wells 1, 2, 9, and 10 currently have a combined permitted maximum daily rate of 13,680,000 gallons under permits number 204467.03 for 1 and 2, and 204630 for 9 and 10. The former was issued on December 29, 1987 and will expire on December 29, 1993, and the latter, issued on October 7, 1981, will expire on that same day in 1991. The permit previously issued for wells 11 and 12 authorized withdrawal at a maximum daily rate of 2,160,000 gallons. That permit, number 204374, expired on September 9, 1986 and was not renewed. After the City filed its Petition challenging Mr. Harloff's proposed permit, Mr. Harloff, on June 26, 1989, filed an amended application to withdraw water at an average annual rate of 10.99 mgd and a maximum daily rate of 48.96 million gallons. This amended application refers to an additional proposed well, Number 13. The District, however, had previously approved wells 3 - 8 and 13, and pursuant to this authorization, wells 3, 5, 8, and 13 were built. Mr. Harloff submitted additional amendments to his application on August 7 and 9, 1989. The former requests a seasonal average daily rate of 25.34 mgd and a seasonal maximum daily rate of 32.79 mgd. The latter requests a seasonal average rate of 26.18 mgd, an annual average rate of 15.18 mgd, and a seasonal maximum rate of 31.56 mgd. In that regard, a seasonal rate is the same as an annual rate, (average or maximum) when applied to a growing season as opposed to a year. The additional amendments to the application were evaluated by District staff who, on August 18, 1989, issued a revised staff report and a proposal to issue to Mr. Harloff a consumptive use permit authorizing an average annual withdrawal of 11.1. mgd, an average seasonal withdrawal of 15.6 mgd, and a seasonal maximum withdrawal of 20.1 mgd. The proposed permit also contains terms and conditions which, the District contends, will, inter alia, permit Mr. Harloff to withdraw more water than he is currently authorized without additional adverse impact on the City's Verna Wellfield. It is to some of these terms and conditions that Mr. Harloff objects. Since the issuance of the revised staff report and intent to issue, the parties have negotiated on the various terms and conditions in question and have agreed to some and the amendment of others. Mr. Harloff has no objection to conditions number 1, 2, 3, 7 - 14, 23, 24, 26, 28 - 30, 32, and 34 & 35. The parties agree that other conditions, as indicated herein, should be amended as follows: Condition 19, on the third line, should be changed to read, " up to 20 inches tapering to 12 inches." Condition 22, on the second line, should be changed from "30 days" to "10 days". Condition 25, on the first line, should be changed from "within 60 days" to within 120 days". Condition 31, on the third line, starting with "following month" should be changed to "following months: January, April, July and October". Also, under Sampling Frequency, "Monthly" should be changed to "Quarterly". Condition 33, on the ninth line, insert the work "economically" before the word "feasible" in the phrase "specific operation and irrigation improvements are feasible". Mr. Harloff objects to conditions 4, 5, 15 - 17, 20 & 27. He does not object to the proposed new standards for new wells. Taken together, the parties then disagree only on the requirement for abandonment or refurbishment of existing wells and the quantities of water Mr. Harloff will be allowed to draw. The City supports the District's position on both issues. The City of Sarasota owns and operates a public water system to serve between 50 to 75 thousand people located in Sarasota County. The primary source of water for this system is the Verna Well field which is also owned by the City and which accounts for approximately 60 percent of the City's water needs. The City also operates a reverse osmosis, (R.O.) water desalinization facility, and has back-up wells at St. Armond Key and at the Bobby Jones Wellfield. The Verna Wellfield is located about 17 miles east of the Sarasota city limits on approximately 2,000 acres of land in northeastern Sarasota County. It consists of two tracts of land: Part "A", which is approximately 1/2 mile wide by 4 miles long; and Part "B", which is approximately 1 mile square located about 500 feet southeast of Part "A". The Verna Wellfield's permitted allocation is based on whether the R.O. facility is producing at capacity. If it is, the Verna daily allocation is 7 mgd, and if not, 9.5 mgd. The R.O. facility's capacity is 4.5 mgd and the backup wells have a capacity of 1.7 mgd. The wellfield contains 39 permitted production wells, 30 of which are in Part "A" and 9 of which are in Part "B." One of them, well 30, is currently inactive. The wellfield has been in operation as a part of the City's public water system since September 1966. When the Verna Wellfield was constructed in 1965-1966, its original design specified casing on most wells down to 140 feet with pump bowl settings at 125 feet. Each pump was to have a total dynamic head, (TDH) of 200 feet. Over the years, the City has decreased the TDH of the pumps at Verna from 200 feet to 175 feet. This has resulted in a reduction of the pumps' ability to produce water with sufficient pressure to carry it to the discharge point. This decline has been caused by an increase in withdrawal of water regionally, and not solely because of withdrawals from the Verna Well field. Verna is impacted by the use of water outside the boundaries of the wellfield. The City has an ongoing program calling for the refurbishment of 2 to 3 wells per year at the Verna Wellfield. It is the City's intent to convert the pumps to 200 feet TDH on all well refurbishments in the future. In August 1977, a program requiring permits for the consumptive use of water was implemented in both Sarasota and Manatee Counties. At that time, the Verna Wellfield had a production rate of 6.9 mgd annual average daily rate. On January 6, 1978, the City applied for a permit for Verna and on April 3, 1979, the District issued permit number 27804318 to allow the City to draw water from the Verna Wellfield. The City applied for a renewal of that permit in October 1983 and thereafter, in January 1985, the District authorized the continued withdrawal of water from Verna by the issuance of permit 204318 which, at Condition 18, placed limitations on the City's use of water from the wellfield. Specifically, the permit limited withdrawals from Verna to: ...6,000,000 gallons per day average and 7,000,000 gallons per day maximum, except during those times when ... [the R.O. process is reduced or to facilitate maintenance or repairs]. At such times, ... [withdrawals) may be increased to provide additional supplies not to exceed 8,000,000 gallons per day average annual and 9,500,000 gallons per day maximum. This condition clearly provides for additional supplies to be drawn to increase the Verna Well field production to a total of 8,000,000 and 9,500,000 mgd, respectively, not in addition to the regular permitted amount, by those quantities. The City's permit has been neither suspended nor revoked nor is any violation enforcement action currently under way. The current permit expires January 9, 1991. The water pumped from the Verna wells is held in a 1,000,000 gallon reservoir at the wellfield. This reservoir, which is topped at approximately 22 to 23 feet, electronically controls the pumping activity at the well field by turning on and shutting off pumps, in series, as the water level in the reservoir rises and falls. The water, when needed, is transmitted to another reservoir near the City's treatment plant in downtown Sarasota by gravity flow through a 30" diameter, 92,000 foot long pipe. The flow rate is approximately 5,000 gpm normally. When the treatment plant needs more water, a pump at the well field forces the flow at a rate of between 7,200 to 8,200 gpm, depending upon the level of water in the receiving reservoir. A flow of 8,200 gpm would draw 11.8 mgd from the wellfield. The operating capacity of the Verna Wellfield, in August 1988, was 17.9 mgd. Harloff's experts assert, and there is no concrete evidence to rebut it, that if all wells at Verna were pumping during a 24 hour period in May 1989, the reservoir could have been maintained at full level. However, though there is a manual override of the automatic reservoir/pump control system, it is unrealistic and unwise to expect full production on a 24 hour basis for any lengthy time period. Water under both Mr. Harloff's property and the Verna Well field is found at various levels known by different names. These include, in order of descent, the Surficial Aquifer, the Intermediate Aquifer, the Upper Floridan Aquifer, and the Lower Floridan Aquifer. The Surficial Aquifer extends from the surface down to between 20 and 60 feet below the surface. A 20 foot thick bed of clay separates the water in this aquifer from that in the aquifer immediately below it, the Intermediate Aquifer, which extends from approximately 80 feet down to approximately 420 feet below the surface. In the lower part of the Intermediate Aquifer, permeability decreases until a confining unit separating the bottom of the Intermediate Aquifer from the top of the Upper Floridan Aquifer is formed. There is such a confining unit between 420 and 500 feet. There is no well-defined confining unit between the Upper and Lower Floridan Aquifers. There is, however, a substantial difference in the transmissivity in each zone. "Transmissivity" is defined as the amount of water that will exist through a section of the aquifer that is the same width from the top to the bottom. The lower the transmissivity rate, the deeper the cone and the narrower the radius of effect. The higher the rate, the shallower the cone and the broader the radius. The Lower Floridan Aquifer has an extremely high transmissivity. Its top is found at a range of from 1,050 to 1,200 feet below the surface on Mr. Harloff's property. The water from the Upper Floridan Aquifer is of higher quality than that in the Lower. It is more readily usable for drinking than that in the Lower, but the Lower water is quite acceptable for agricultural purposes. What confining layer exists between the Upper and Lower Floridan Aquifers is made up of relatively impermeable anhydrides and gypsum. Because of this, there is little likelihood of the highly mineralized water from the Lower Floridan Aquifer rising into the better quality water in the Upper. If, therefore, water for agricultural purposes is drawn from the Lower Floridan Aquifer, with its high transmissivity and narrower cone radius, and if the wells utilized to procure this water are cased down to within the Lower aquifer, there is little chance of a negative impact on the better quality water, used for drinking by the City, within the Upper Floridan and Intermediate Aquifers. Mr. Hardin, an expert geologist and hydrogeologist testifying for Mr. Harloff, concluded, utilizing certain commonly accepted computer models, that Mr. Harloff's requested additional withdrawals would not have a significant effect on the Verna Wellfield's ability to produce water sufficient for the City's needs. This conclusion was based on 1989 seasonal use figures including an average rate of 21.95 mgd, a maximum rate of 27.04 mgd, and a maximum rate of 29 mgd under a "run time" calculation and the fact that during that period, the City was able to pump at least its permitted quantity from its wells at Verna. The City and the District do not accept this conclusion as reasonable, however, because, they claim, the withdrawal figures cited are not meter readouts but estimates based on the number of acres farmed and the number of pump operating hours during the period in question. The City's experts contend the data used by Hardin and Prochaska in their opinions is not that which other experts in the field would reasonably rely upon. They do not appear to be unrealistic, however, and, therefore, Mr. Hardin's opinion is accepted as but one factor to be considered. On the other hand, Mr. Anderson, also a Harloff expert hydrogeologist, claims the requested withdrawals would result in only an additional 1.7 foot drawdown in the Upper Floridan Aquifer underlying the Northeast corner of the Verna Well field. To be sure, this is only one small portion of the wellfield in issue. There has, however, been a continuing history of declining groundwater levels in this area over the past several years. After the 1975 drought, the City started to experience declining water levels at Verna which, because of the reduction in ability to produce water, required a lowering of the pump elements in some wells, and also caused the City to develop an R.O. facility in an effort to reduce dependence on well water. This drop in capability occurred again during the 1985 drought and this time the City modified the pump motors to shut off prior to cavitation and initiated a schedule of operating times for wells, so that water is drawn from different and geographically separated areas in a sequence designed to allow periodic regeneration of an area's supply. Nevertheless, water supply remains a concern at Verna, and the problems previously experienced continue to occur during periods of drought. In May 1989, the Verna Wellfield was periodically "unable" to meet it's short term peak demands at times even though all operating wells were pumping. This means that at the times in question, more water was being drawn from the Verna reservoir than could be replaced by pumping activities. It does not mean that the reservoir ran dry and water could not be furnished to the treatment plant. However, this condition is serious and indicative of a more serious shortage in the future unless appropriate safeguards are instituted. Mr. Balleau, the City's expert in hydrology and hydrogeology, and the District's experts all believe the Verna Wellfield is in trouble. It is operating well beyond its design range and the imposition of additional demands on it would seriously and adversely affect its ability to produce water. This position is supported by the facts and found to be accurate. There appear to be several options open to the City to contend with the Verna problem potential. These include: drill deeper wells at Verna to tap the Lower Floridan Aquifer. (This will produce the lower quality water found there and require additional treatment facilities. construct a linear wellfield along the pipeline from Verna to the treatment facility. (This will require additional permitting to draw the water, high construction and operating costs, and still result in low quality water requiring treatment. redevelop the downtown wells currently supplying the R.O. facility. (This will require satisfaction of regulatory issues, adversely impact on the users of the upper aquifers, possibly result in poor water quality and in contamination from nearby landfills.) develop a new well field southeast of Verna. (This will experience regulatory issues and high construction costs, with an unknown water quality result.) buy water from Manatee County. (This is expensive, may result in transmission and compatibility problems, and would be only a short term solution. lower pump assemblies; replace existing pumps and modify the pump circuits. (These are all unreliable, short term solutions of minimal benefit.) Mr. Harloff and the City/District disagree on the appropriate amount of water needed for the successful growing of the crops produced by his operations. Both agree, however, that the heaviest demands for water come in the spring growing season including April and May. Tomatoes require the most water. Peppers require nearly as much. This is because the short root systems require a higher water table in the soil to supply needed moisture. In its analysis of Mr. Harloff's application, the District, referring to tables developed for the purpose of allocation and relating to Harloff's watering history during the period from August 15, 1988 to June 7, 1989, subtracted the fall season recorded application of 20.7 acre-inches from the total 10 month figure of 50.92 acre-inches and concluded he would need 30.22 acre-inches for peppers during the spring, 1989 season. Unless shown to be totally unreasonable, however, (not the case here), the applicant's water need figures should be accepted. Mr. Harloff's operation constitutes an important part of Manatee County's agricultural economy, and agriculture utilizes 68.9 percent of the land in the county. Agricultural products sold in Manatee County in 1987 were valued at $145,655,000.00, which ranked Manatee County third among all Florida counties in vegetable production. Agriculture is the fourth largest employer in Manatee County, employing an average of 4,692 people per month. Through his farm operation alone, Harloff employes as many as 1,050 people, with 200 employed on a full-time basis. Experts estimate that the loss of the Harloff operation would cause a reduction of between 16 and 18 million dollars in agricultural sales in the county with an additional loss in jobs and income to his suppliers. This estimate is not at all unreasonable. Florida produces approximately 95 percent of all tomatoes grown in this country for the fresh tomato market during the winter growing season. Tomatoes are the single largest vegetable crop grown in the state and accounted for 39.7 percent of the total value of vegetables produced in Florida during the 1987-1988 growing season. Mr. Harloff produced 4.8 percent of the total shipment of tomatoes from this state during that period. Water, primarily through irrigation, is an indispensable portion of the farming operation for this crop. Mr. Harloff currently irrigates the majority of his non-citrus crops by use of a "semi-closed ditch irrigation system", as opposed to a "drip system." The drip system is considerably more efficient than the semi-closed system having an efficiency rating, (amount of water actually used by the plants) of between 80 to 90 percent, as opposed to 40 to 60 percent for the other. While Mr. Harloff could reduce his water needs considerably and achieve substantial savings on pump fuel by conversion to a drip system for all or a part of his crops, such an undertaking would be quite costly. One of the conditions proposed by the District for the approval of Harloff's permit, as amended, is the refurbishment of several of the existing wells utilized by Mr. Harloff to make them more efficient and to promote the withdrawal of water from the Lower Floridan Aquifer, in which there appears to be adequate water and from which the Verna Well field does not draw. Currently, Mr. Harloff has seven wells which do not meet the standards of this proposed condition. They are not drilled to 1,300 feet below mean sea level and are not cased to 600 feet. To bring these wells into compliance, they would have to be drilled to the 1,300 foot level, or to a level which has a specific capacity of 400 gpm, and the casings in each would have to be extended to 600 feet. Extending the casings would be a complicated procedure and Harloff's experts in the area cannot guarantee the procedure would successfully achieve the desired end. Assuming the retrofit was successful, the cost of the entire process would be approximately $15,000.00 to $16,000.00 per well. In addition, the process would, perforce, require reducing the diameter of the well from 10 to 8 inches, thereby necessitating increasing the pump capacity to produce sufficient water. The cost of this is substantial with an appropriate new pump costing somewhere between $10,000.00 and $15,000.00 each. Consequently, the anticipated cost of bringing the existing wells up to condition standards would be between $25,000.00 to $31,000.00 per well, while the cost of constructing a new well is between $40,000.00 and $50,000.00 per well. Mr. Harloff feels it would be more prudent for him to replace the existing wells rather than to retrofit them. This may be correct. Harloff experts also claim that extending the casings on the existing wells down to 600 feet would not provide a significant benefit to the aquifer nor cause any significant reduction in drawdown impact at Verna. The District and City experts disagree and, taken on balance, caution and the interests of the public indicate that a conservative approach is more appropriate. While Mr. Harloff proposes to convert the areas served by wells 1, 9, 11, and 12 to the growing of citrus which requires much less water than tomatoes, this would not be sufficient mitigation to offset the need for some modification if large amounts of water will still be drawn. The entire area under the District's jurisdiction has been experiencing a water shortage due to a lack of rainfall. As a result, in June 1989, the District adopted a resolution identifying an area, including the area in question here, as a "water use caution area." This was done because the Floridan Aquifer has been subjected to large seasonable drawdowns of the potientiometric surface, the level to which water in a confined aquifer can rise in a well which penetrates that acquifer. This drawdown is directly related to increased water use in the area, much of which is for agricultural purposes. As a result of the District's action, special conditions on well construction for consumptive use applicants have been imposed on a permit by permit basis to insure, as much as possible, that the applicant uses the lowest quality water appropriate for his intended purpose. These conditions are not unreasonable. While accepting the District's and City's conclusion that his wells, if permitted, would have some impact on the Verna Wellfield, Mr. Harloff does not concede that the impact is significant. Specifically, the difference in impact resulting from an increase from his currently permitted use of 13.68 mgd seasonal maximum and his requested use of 31.56 mgd seasonal maximum for wells 1, 2, 9, and 10 would be a maximum increased drawdown of 1.1 feet at the Intermediate aquifer and 1.8 feet at the Upper Floridan Aquifer. Both figures relate to that portion of the wellfield found in the northeast corner of Part A. If the anticipated usage for crops predicted by Mr. Harloff's experts for the spring of 1989 is accurate, the drawdown would be 0.2 feet for the intermediate aquifer and 0.4 feet for the Upper Floridan Aquifer measured at the northeast corner of Part B of the Verna We1lfield. Harloff's experts contend that additional impacts for the spring of 1989 included, the increased usage will not have a significant effect on Verna's ability to produce its permitted daily maximum withdrawal of 9.5 mgd. While this is an educated speculation, it should be noted that during May 1989, the Verna field was able to produce up to 8.3 mgd without using all wells during any 24 hour period. This does not consider, however, the problems encountered by the City as indicated by the wellfield personnel, and the fact that some of the City wells are not pumping water.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Roger Harloff be issued a consumptive use permit, No. 204467.04, as modified, to reflect authorization to draw 15.18 mgd annual average, not to exceed 31.56 mgd seasonal maximum, conditioned upon compliance with the conditions found in the conditions portion of the permit, as modified to conform to the quantities as stated herein, and to include those requirements as to acre-inch and crop-acre limitations, well usage and abandonment schedules, well modification standards, and record keeping, as are contained therein. RECOMMENDED this 5th day of December, 1989, 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 5th day of December, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE No. 89-0574 The following constitutes my specific rulings pursuant to s. 120.59(2), Florida Statutes, on all of the proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: City of Sarasota, joined by the District 1 & 2. Accepted and incorporated herein. 3. Accepted and incorporated herein. 8-12. Accepted and incorporated herein. 13. Accepted and incorporated herein. 14-22. Accepted and incorporated herein. 23-25. Accepted and incorporated herein. 26. Accepted and incorporated herein. 27 & 28. Accepted and incorporated herein. 29-33. Accepted and incorporated herein. Not a Finding of Fact but a statement of party position. & 36. Accepted. 37. & 38. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Not a Finding of Fact but a comment on opponent's satisfaction of its burden of proof. 42-44. Accepted and incorporated herein. Accepted and incorporated herein. Rejected as a misstatement of fact. Water service was never interrupted. The deficiency was in the City's inability to keep its wellfield reservoir filled. 47-54. Accepted and incorporated herein. Accepted and incorporated herein. Rejected for the reasons outlined in 41. 57-62. Accepted and incorporated herein. 63. Rejected for the reasons outlined in 41. 64-66. Accepted and incorporated herein. Rejected for the reasons outlined in 41. Rejected. & 70. Accepted and incorporated herein. 71. & 72. Accepted and incorporated herein. 73. Accepted and incorporated herein. 74 & 75. Accepted and incorporated herein. Accepted. Not a Finding of Fact but a statement of party position. Rejected. Accepted. Irrelevant. 81-84. Rejected. 85. & 86. Accepted and incorporated herein. 87 & 88. Accepted and incorporated herein. 89. Accepted and incorporated herein. 90 & 91. Accepted and incorporated herein. 92. & 93. Accepted and incorporated herein. FOR THE RESPONDENT: Roger Harloff 1-9. Accepted and incorporated herein. 10-13. Accepted and incorporated herein. 14 & 15. Accepted and incorporated herein. 16-25. Accepted and incorporated herein. 26-28. Accepted and incorporated herein. 29 & 30. Accepted. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Not proven. 35 & 36. Accepted and incorporated herein. 37 & 38. Accepted and incorporated herein. 39-41. Accepted and incorporated herein. 42 & 43. Accepted and incorporated herein. 44. Accepted. 45 & 46. Accepted and incorporated herein. 47 & 48. Accepted and incorporated herein. 49. Accepted. 50 & 51. Accepted and incorporated herein. Accepted. Accepted. Accepted. & 56. Accepted and incorporated herein. 57. Accepted. 58-60. Accepted and incorporated herein. 61 & 62. Accepted and incorporated herein. Rejected as unproven. Accepted. Accepted and incorporated herein. Accepted. 67-68. Accepted. Not a Finding of Fact but an interpretation of party po Accepted. Rejected. 72 & 73. Accepted. COPIES FURNISHED: Edward P. de la Parte, Jr., Esquire de la Parte, Gilbert and Gramovot, P.A. 705 East Kennedy- Blvd. Tampa, Florida 33602 Edward B. Helvenston, Esquire SWFWMD 2379 Broad Street Brooksville, Florida 34609-6899 Douglas P. Manson, Esquire Blain & Cone, P.A. 202 Madison Street Tampa, Florida 33602 Peter G. Hubbell Executive Director SWFWMD 2379 Broad Street Brooksville, Florida 34609-6899
The Issue Whether the Petitioner's water supply system that supplies water to residents of Cypress Knee Cove comes under the jurisdiction of the Respondent and, if so, is the level of Ethylene dibromide (EDB) in the water supplied by Petitioner an imminent hazard to the residents of Cypress Knee Cove.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found. Petitioner George T. Donaldson owns and operates Cypress Knee Cove Mobile Home Park (Park) a residential mobile home park located at 3300 Canal Road, Lake Wales, Polk County, Florida. Petitioner owns and operates a water system providing piped water for consumption and use by the residents of the Park. The water system uses a groundwater source and can have up to 32 connections. The water system is presently connected to 27 mobile homes. Of those 27 mobile homes, one is vacant, 11 are used year-round, 15 are used seasonally. Of those being used seasonally, four are being used six months or more out of the year. Nineteen residents live in the 11 mobile homes used year-round and eight residents live in the four mobile homes 6 months or more out of the year. There are a total of 46 residents living in the Park during the year. The balance of the residents live in the Park less than 6 months out of the year. All of the mobile homes at the Park are permanently mounted and remain on the lots year-round. Twenty-five of the mobile homes in the Park are privately owned by residents of the Park and are available for year-round occupancy by the owner. Sampling for EDB from Petitioner's water system at the Park are done by the Department of Health and Rehabilitative Services, Polk County Health Unity (PCHU) on March 14, 1984 and the samples analyzed by the University of Florida (UF) for EDB. The UF reported EDB concentration of 0.02756 ppb. No samples of water from Petitioner's water system at the Park were collected by PCHU for testing for EDB from March 14, 1984 and until April 4, 1988. The PCHU began sampling Petitioner's water system at the Park again in April, 1988 and submitting those samples to the Department of Health and Rehabilitative Services (HRS) state certified laboratory in Jacksonville, Florida for analysis. The following are the results of those tests: Date of Sampling EDB Level April 4, 1988 below detectable level of 0.02 ppb - BDL August 17, 1988 0.17 ppb October 5, 1988 unconfirmed positive- resample November 7, 1988 0.058 ppb November 22, 1988 BDL-analytical problem- resample December 1, 1988 BDL January 4, 1989 0.062 ppb *January 18, 1989 0.070 ppb July 26, 1990 0.058 ppb *split sample with P.E. LaMoreaux and Associates P.E. LaMoreaux and Associates, a private state certified laboratory (PELA), analyzed samples taken from Petitioner's water system at the Park. The following are the results of those samples: Date of Sampling EDB Level August 23, 1988 BDL October 12, 1988 BDL *January 18, 1989 0.12 ppb **January 18, 1989 BDL *split sample with HRS **Revised report of January 18, 1989 split sample with HRS The Sun Air water system is owned and operated by Polk County and potable water for the Park is immediately available from this water system. The cost of connection to Polk County's Sun Air water system for residents in this area is covered under the state of Florida's EDB grant program. However, since the mobile homes do not have individual meters from Petitioner's water system, the grant will only pay for one hook-up. A water line from Sun Air runs along Canal Road beside the Park and is available for immediate connection. Although the hook-up is paid for by the grant, Polk County would charge for the water furnished to the Park. Sun Air water system was sampled in May, 1986 and again in July, 1990. The 1986 sample was analyzed by PELA and the level of EDB was BDL. The 1990 sample was analyzed by HRS and the EDB level was also BDL. An alternative method of treating EDB contamination at the Park would be the installation of a carbon filter system which cost approximately $3,000.00. Fluctuations in the EDB level may be due to the nature of EDB and the local hydrology. Should Petitioner hook-up to the Sun Air water system, his present well may be used for irrigation or watering lawns. There was no evidence adduced at the hearing concerning the allegation of cost in Count III.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Environmental Regulation enter a final order directing Petitioner to connect to the available and approved Polk County water system or install a treatment system necessary for the reduction of EDB below the established MCL and placing appropriate and reasonable time schedule for commencing and completing either alternative and other conditions deemed appropriate and reasonable under the circumstances. It is further Recommended that Count II be dismissed. DONE and ENTERED this 26th day of October, 1990, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 1990. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the Proposed Findings of Fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner The first clause of the first sentence of proposed Finding of Fact 1 is adopted in Finding of Fact 1, the balance of sentence one is not supported by substantial competent evidence in the record. The balance of proposed Finding of Fact 1 is not material. The first clause of the first sentence of proposed Finding of Fact 2 is not supported by substantial competence evidence in the record. The balance of proposed Finding of Fact 2 is adopted in Findings of Fact 10 and 11. Proposed Finding of Fact 3 is not supported by substantial competent evidence in the record. Proposed Finding of Fact 4 adopted in Findings of Fact 12 and 15. While the undersigned is aware that cost is a concern to the Petitioner, it is not a necessary Finding of Fact to reach a conclusion. Specific Rulings on Proposed Findings of Fact Submitted by Respondent 1.-6. Adopted in Findings of Fact 1, 2, 3, 4, 7 and 7, respectively. 7. Not material. 8.-10. Adopted in Findings of Fact 5, 6 and 4, respectively. 11.-14. Adopted in Findings of Fact 4 and 5. 15.-16. Unnecessary. 17.-18. Adopted in Finding of Fact 8. 19. Adopted In Findings of Fact 9 and 10. 20.-22. Adopted in Finding of Fact 10. 23. Adopted in Finding of Fact 11. 24.-25. Adopted in Finding of Fact 10. 26. Adopted in Finding of Fact 11. 27.-29. Adopted in Finding of Fact 10. 30. Adopted in Finding of Fact 11. 31.-32. Adopted in Finding of Fact 10. Adopted in Finding of Fact 12. Adopted in Findings of Fact 12 and 13. 35.-38. Adopted in Findings of Fact 13, 15, 16 and 17, respectively. 39.-43. Not material or necessary. 44. Adopted in Finding of Fact 18. COPIES FURNISHED: Francine M. Ffolkes, Esq. 2600 Blair Stone Road Tallahassee, FL 32399-2400 George T. Donaldson 3300 Canal Road Lake Wales, FL 33853 Dale W. Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issues in this case essentially are whether the Respondent, the Department of Environmental Regulation (DER), should reimburse Anthony F. Kopp, Owner, La Casa Del Sol, for the difference between the cost to him of the DER's remedy for the EDB contamination of the drinking water supply at La Casa Del Sol and the remedy that is least costly to the Petitioner, together with the cost of a new irrigation system, engineering and attorney fees, and other incidental costs to the Petitioner.
Findings Of Fact The Petitioner, Anthony F. Kopp, is the owner of La Casa Del Sol (La Casa), a 40-acre development at 1255 U.S. Highway 27 North, Davenport, Florida. La Casa is divided into 309 mobile home lots, a clubhouse and five acres of common green space. In January, 1987, the Petitioner received a permit for construction of a water supply system for both drinking water and irrigation needs at La Casa. The construction permit was granted with the proviso that, when La Casa's population reached 350, a second backup drinking water well, six inches in diameter at 410 feet, with a casing to 366 feet, and an auxiliary power source would have to be installed. It would cost La Casa approximately $65,000 to install the backup well and auxiliary power source. La Casa did not reach a population of 350 until January, 1991. The St. Johns River Water Management District permitted the construction of the backup well, but the well never was constructed, and the construction permit now has expired. The auxiliary power source also was not installed. The main water supply system for La Casa was installed during the summer of 1987. It included a well and a system of lines for carrying water to each of the 309 lots. It also included hose bibs (faucets) at each lot so that the water also could be used for irrigation at each lot. The system also supplied water for irrigation of the common green space. Although all of the lots at La Casa were connected to the water supply system in the manner described, not all the lots had homes on them. During the summer of 1989, only about 175 of the lots had homes on them; by January, 1991, 198 lots had homes on them. Although not all of the lots were occupied, the entire water supply system was permitted, and no additional permits were required to provide water to the lots. However, when La Casa's population reached 350, the backup well and auxiliary power source would have to be installed under the permit conditions. In about May, 1988, DER tests showed that the La Casa water supply system was contaminated with ethylene dibromide (EDB) at levels in excess of the maximum allowable for drinking water. In October, 1988, the Petitioner completed and filed a Grant Application for EDB Clean-Up Funds. As part of the application, the Petitioner agreed that DER could: arrange for the purchase and installation of appropriate filters and inhibitors; provide a new well; or arrange for the connection of [the Petitioner's] well to an existing public supply system, whichever is more cost-effective as determined by the Department of Environmental Regulation. DER contracted with Continental Water Systems to provide a temporary carbon filter system for La Casa's water supply system to remove the EDB and supply uncontaminated drinking water to the development, pending a permanent solution to the EDB contamination. The temporary filter system was designed to provide 100 gallons per minute of water, which should have been adequate for drinking water needs at La Casa. However, water pressure problems arose due to algal growth and the use of the system for irrigation purposes in addition to the drinking water purposes for which it was designed. DER is a member of the Ground Water Task Force, which met biweekly or monthly to discuss, among other things, potable wells contaminated with EDB. Other member agencies are the Department of Heath and Rehabilitative Services, the Department of Agriculture and Consumer Services, the Department of Transportation and the Department of Community Affairs. The Task Force discussed the La Casa contamination problem and agreed that the possibility of having La Casa connected to an existing water supply should be explored. DER began negotiating both with Polk County and with Haines City for a water line connection. Connection with the Polk County line would have been more expensive, and Polk County was not particularly interested in extending its line. Negotiations continued with Haines City. Negotiations with Haines City progressed to the point that DER was able to present for consideration by the Task Force cost figures for a permanent filter system at La Casa, with ten years of projected cost of operation and maintenance, as compared to the cost of extending the Haines City line. The Task Force agreed with DER that extending the Haines City line north to La Casa and connecting La Casa to it was the most cost-effective use of state funds to remedy the EDB problem at La Casa, particularly in view of other EDB-related drinking water supply problems in the area and anticipated future drinking water supply problems in the area. The Petitioner was not invited to participate in the negotiations with Polk County and Haines City and did not participate in them. Nor was the Petitioner invited to participate in either the DER or the Task Force decision- making process, and the Petitioner did not participate in those processes, either. However, the Petitioner, through his engineering consultant, was made aware in early 1989 that DER was exploring options to have La Casa connected to an existing water supply. DER paid approximately $400,000 for the Haines City water line extension and La Casa connection. This included $90,000 for Haines City impact fees to cover the 175 then existing mobile homes at La Casa (DER actually paid $450 per unit for 200 units), as well as the plumbing contractor fees for connecting La Casa to the extended city water line. It also includes the cost of installing a water meter at La Casa. The ten-year cost to the DER to solve just the La Casa drinking water problem using an EDB filter system would have been less than the cost to the DER of extending the Haines City line and connecting La Casa to it. But the evidence is clear that, in the long run, and taking into consideration other EDB-related drinking water supply problems in the area, and anticipated future drinking water supply problems in the area, the most cost-effective use of state funds to remedy the problem was to extend the Haines City line and connect La Casa to it. (Even the Petitioner's expert witness agreed that the Haines City extension and connection was the most cost-effective use of state funds to remedy the area's EDB problem.) DER advised the Petitioner of its agreement with Haines City in approximately May or June, 1989. By letter dated July 27, 1989, DER explained to the Petitioner the details of the agreement, specifically what DER would pay and what DER would not pay. By the fall of 1989, the Petitioner knew that work was beginning. At the time, the extension of the Haines City line and connection to La Casa was projected for completion in January, 1990, but there were delays, and the city water supply was not ready to be connected to La Casa until August, 1990. By this time, a dispute had arisen between the Petitioner and DER as to the cost to the Petitioner of connecting to the city water, and actual connection was further delayed. Finally, by letter dated October 11, 1990, DER gave the Petitioner an ultimatum: either be connected to the city water supply; or forfeit any state contribution to the cost of remedying the EDB contamination of the Petitioner's water supply. Faced with the prospect of having to open the winter peak season without any drinking water, the Petitioner agreed, under protest, to be connected to the city water supply, and initiated formal administrative proceedings to challenge DER's intended decision to limit the extent to which the DER would cover the Petitioner's costs. There was evidence that the plumbing contractor hired by DER may have caused damage to the landscaping and one mobile home that has not yet been repaired. However, DER acknowledged its responsibility for the damage and intends to have the plumbing contractor repair the damage. There also was evidence that the Petitioner received a bill from Haines City for the installation of a water meter at La Casa. But the evidence also was that DER may already have paid the bill. In any event, DER acknowledges its responsibility for the cost of the water meter as part of the cost of connecting La Casa to the extended city water line. Although DER had the Haines City water line extended in response to the Petitioner's Grant Application for EDB Clean-Up Funds, two commercial properties south of La Casa were connected because of EDB contamination, and the line also was extended north of La Casa in preparation to address anticipated future EDB contamination problems. Under the DER's response to the Petitioner's Grant Application, each additional mobile home unit over 200 connected to the city water supply will require the payment of a $450 impact fee. In addition, Haines City will charge monthly water fees of $1.80 1/ per 1000 gallons for the use of water at La Casa, with a $1,000 minimum charge per month. 2/ Based on current occupancy of 200 lots, the Petitioner estimates water fees of $42,000 per year, figured at approximately $5,000 per month for six peak months (based on a recent peak season monthly bill) and $2,000 per month for six off-peak months. However, it is not clear whether some of that estimated usage includes irrigation. If, in order to save gallonage fees, the Petitioner puts in a separate irrigation system supplied by its well, it will have to put in a separate distribution system since the current system is being used to bring city water to the lots. This would cost approximately $90,000. The Petitioner has paid approximately $2,100 in engineering fees to assess the problem with the temporary filter and to propose solutions, to estimate the cost of installing a separate irrigation system, and to estimate the cost to the Petitioner of connecting to the Haines City water supply. There was no evidence as to the reasonableness of those fees. The Petitioner also has paid approximately $4,500 in attorney fees to negotiate with the DER for payment of a larger portion of the Petitioner's cost of connecting to the Haines City water supply. There was no evidence as to the reasonableness of the attorney fees.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order dismissing the Amended Petition for Formal Hearing in this case. RECOMMENDED this 14th day of March, 1991, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 14th day of March, 1991.
The Issue The issue in this case is whether the St. Johns River Water Management District (District) should issue a consumptive use permit (CUP) in response to Application Number 99052 filed by the City of Titusville and, if so, what CUP terms are appropriate.
Findings Of Fact Area II and III Wellfields On February 10, 1998, the District issued CUP 10647 to the City of Titusville, authorizing the withdrawal of an annual average of 6.5 mgd from the City's Area II and Area III Wellfields, 5.4 from Area II and 1.1 from Area III. These wellfields are owned and operated by the City and are located within its municipal boundaries. They produce water from the SAS. The Area II Wellfield is located near I-95 in the northeastern portion of the City and consists of shallow wells primarily constructed between 1955 and 2002. It consists of 53 production wells, of which 31 are considered to be of primary use. The City replaced 16 Area II production wells in 1995 and 4 production wells in 2000 and is currently considering the replacement of 4 additional wells. The Area III Wellfield is located in the south-central portion of the City’s service area. It consists of 35 production wells, of which 18 are considered to be of primary use. Petitioners contend that both the "safe yield" (the quantity of water the City can withdraw without degrading the water resource) and the "reliable yield" (the quantity of water the City can dependably withdraw) of the Area II and III Wellfields are the permitted limits of 5.4 and 1.1 mgd, respectively. The City and the District contend that saline intrusion into the SAS has reduced the safe and reliable yields to significantly less than the permitted amounts at this time. Historically, the Area II Wellfield was the most productive wellfield. Prior to 1988, the City relied entirely on the Area II Wellfield and pumped almost 5 mgd from it at times. Since then, several Area II wells have shown signs of water quality degradation that has resulted in a reduction in pumping to better stabilize water quality levels. For the past five years, the City has only pumped approximately 3 mgd on an annual average basis from the Area II Wellfield. Chloride concentrations exceeding 250 mg/l have been recorded in 16 Area II production wells. Chloride concentrations exceeding 250 mg/l have been recorded in 22 Area III production wells. About 10 wells in the Area II and III Wellfields have been abandoned because of water quality degradation. At the Area II Wellfields there are 10 wells whose use is impaired because of water quality issues. At the Area III Wellfields there are 15 wells whose use is impaired because of water quality issues. Area III has had serious chloride problems, with concentrations at or near 200 mg/l for much of the mid-90's. In the Area III Wellfield, the Anastasia wells have the best water quality. However, these wells have also seen increasing concentrations of chlorides, with one well over 200 mg/l. According to information introduced into evidence by the City, it appears that Area III began to have chloride problems primarily due to over-pumping.5 The City pumped far in excess of permit limits from Area III during the early 1990's, including almost twice the permit limit in 1990 and 1.5 times the limit in 1991. While chlorides were between 77 and 92 mg/l in 1990-92, they began to rise in 1993 and were between 192 and 202 mg/l for the rest of the decade. Area III production declined in 1997 to approximately 0.66 mgd and declined further to a low of approximately 0.5 mgd in 1999. In 2000, chlorides fell to approximately 138 mg/l and then rose to approximately 150 mg/l in 2002-04, while production gradually rose to close to the permit limit in 2002 and 2003, before dipping to 0.75 mgd in 2004. In 2005, production was back up to 1 mgd, and chlorides were approximately 87 mg/l. During the five years from 2001 through 2005, the City has pumped an annual average rate of approximately 1 mgd from Area III. In contrast, Area II has not been over-pumped during the same time period. Area II production generally declined from a high of 4.146 mgd in 1992 to a low of 2.525 mgd in 2000, except for an increase of approximately 0.25 mgd between 1997 and 1998. During this time, chlorides generally declined from a high of 124 mg/l in 1993 to approximately 68 mg/l in 2000, with the exception of a rise to approximately 111 mg/l in 1999. Area II production then generally increased through 2003 to approximately 3.000 mgd, where it remained in 2004 before declining to approximately 2.770 mgd in 2005. Area II chlorides were approximately 113 mg/l in 2001, 109 in 2002, 86 in 2003, 76 in 2004, and 83 in 2005. During the five years from 2001 through 2005, the City has pumped only an annual average rate of 2.86 mgd. In 1995, the City entered into a contract with the City of Cocoa requiring the City to pay for at least 1 mgd each year, whether the City actually takes the water or not (the "take-or-pay" clause). Using the Cocoa water allowed the City to reduce production from Area III without a corresponding increase in production from Area II. Water conservation measures implemented since 1998, including conservation rates, have since reduced per capita water use. In 2002, the contractual take-or-pay requirement was reduced to 0.5 mgd. After 2002, purchases of Cocoa water have amounted to 0.576, 0.712, and 0.372 mgd on an annual average basis. As a result, since at least 1990 Area II has not been required to produce at its permitted limit. It is not clear exactly what the City believes to be safe and reliable yields at this time from Areas II and III. In its PRO, the City took the position that the total reliable yield is 3.5 to 4 mgd, of which 2.25 to 2.5 mgd is attributable to the Area II Wellfield and 0.75 mgd is attributable to the Area III Wellfield. However, its consultant, Mr. Patrick Barnes, testified that the City's current reliable yields are 3 mgd from Area II and 1 or 1.1 mgd from Area III. He testified that the safe yield from Area II would be approximately 3.5 mgd. The District has not formulated an opinion as to the exact of amount of water that can be produced from the Area II and III Wellfields on a sustainable basis. However, the District believes that recent production levels, which have resulted in a stabilization of chloride concentrations, may be the most production that can be sustained from these facilities without adverse water resource impacts. That would mean approximately 4.5 mgd on an annual average basis from Areas II and III combined. It might be possible for the City to expand the reliable yield of the Area II Wellfield by constructing additional wells or through some other measures. But Brevard County’s North Brevard Wellfield, located immediately north of the City’s Area II Wellfield, utilizes the same SAS used by the Area II Wellfield, and Brevard County recently received an increased permitted allocation from the District for this facility. This would limit the City’s ability to expand the current production of water from the Area II Wellfield. Other limitations on expansion of production from Areas II and III include: the relatively high risk of contamination of the SAS from pollution sources such as underground petroleum storage tanks; the limited space available in an increasingly urbanized area for the construction of new wells; the chronic bio-fouling and encrustation of wells due to the high iron content of the SAS; and the low specific capacity of each production well. For these reasons, it is not clear at this point in time whether it is possible to sustain more water production from Areas II and III than the City has pumped in recent years. B. Area IV Application and TSR On March 6, 2001, the City of Titusville submitted its application to modify CUP 10647. Included in this application was a proposal to add a new Area IV Wellfield in northwest Brevard County to pump up to 2.75 mgd from the UFAS. The District issued a series of seven Requests for Additional Information in between April 5, 2001, and March 23, 2004. On December 15, 2004, the District issued its initial TSR for the CUP modification application. That TSR proposed to authorize the use of 2.75 mgd from the UFAS and 0.18 mgd of groundwater from the SAS from the proposed Area IV Wellfield and 3.3 mgd of groundwater from the SAS from the existing Area II and Area III Wellfields to serve a projected population of 56,565 in 2008. There was no request to extend or renew the permit, which expires February 10, 2008. Miami Corporation filed a petition challenging this TSR. On May 13, 2005, the City submitted a revised application for a separate Individual CUP for the Area IV Wellfield, rather than modifying its existing CUP 10647 to include the new wellfield, with a permit expiration of December 31, 2010. On May 25, 2005, the staff issued a revised TSR. That TSR proposed a new permit to authorize up to 2.75 mgd of groundwater from the UFAS and 0.178 mgd of groundwater from the SAS from the proposed Area IV Wellfield to serve a projected population of 59,660 in 2010. The revised TSR noted that the proposed permit expiration date for the Area II and Area III Wellfields would remain February 10, 2008. Vergie Clark filed a petition challenging the revised TSR, as did Miami Corporation. After various notices on the TSR and the revised TSR to interested persons in Brevard County, in August 2005 the District issued additional notice to interested persons in Orange, Seminole and Volusia Counties. As a result, all required public notices have been issued. On March 14, 2006, the City again revised its application, and on May 1, 2006, the District issued its second revised, and final, TSR--which is the TSR now at issue. The TSR at issue recommended that a CUP be issued to Titusville for 2.75 mgd of groundwater from the UFAS and .18 mgd of groundwater from the SAS for wetland hydration and aquifer recharge from the Area IV Wellfield on an annual average basis to serve a projected population of 63,036 in 2010. This TSR provided that the proposed permit would expire December 31, 2010. TSR at Issue Water Use Allocation The CUP recommended by the TSR would only grant the City a water allocation from the Area IV Wellfield for 2009 and 2010. The recommended CUP would allow the City to withdraw water from the Area IV Wellfield at an annual average rate of 2.75 mgd during those years for public supply. (Other Condition 4) The CUP recommended by the TSR would limit the City’s potable water allocation from the Area IV Wellfield to a maximum rate of 3.85 mgd during the four consecutive months of the dry season, which can occur during any time of the year. If 3.85 mgd is withdrawn during this four-month period, the withdrawal rate for the remaining 8 months cannot exceed 2.21 mgd. (Other Condition 8) The CUP recommended by the TSR would limit the City’s potable water allocation from the Area IV Wellfield to a maximum rate of 4.41 mgd during any single month. (Other Condition 7) The CUP recommended by the TSR would limit the City’s potable water allocation from the Area IV Wellfield to a maximum rate of 6.5 mgd during any single day during a severe drought, when the existing sources (meaning Areas II and III) cannot be used without inducing water quality degradation or exceeding permitted quantities. (Other Condition 9) The CUP recommended by the TSR would allow the City to withdraw water from the SAS extraction wells at an annual average rate of up to 0.178 mgd in 2009 and 2010 for wetland hydration and surficial aquifer recharge. (Other Condition 6) The CUP recommended by the TSR would limit the withdrawal of water from the Area II, III and IV Wellfields to a combined annual average rate of 5.79 mgd in 2009 and a combined annual average rate of 6.01 mgd in 2010. The CUP recommended by the TSR would limit the withdrawal of water from the Area II, III and IV Wellfields to a combined maximum daily rate of 8.88 mgd in 2009 and 9.0 mgd in 2010. (Other Conditions 5, 9) The CUP recommended by the TSR would reduce Titusville's combined annual average and maximum daily allocations from the Area II, III and IV Wellfields in 2009 and 2010 by an amount equivalent to the quantity of water purchased from the City of Cocoa during each year. (Other Conditions 5, 9) Other Condition 10 in the recommended by the TSR notifies the City that nonuse of the water supply allocated by the CUP for two years or more is grounds for revocation by the District's Governing Board, permanently and in whole, unless the City can prove that its nonuse was due to extreme hardship caused by factors beyond the City's control. Permit Duration The CUP recommended by the TSR would not allow the City to withdraw water from the Area IV Wellfield earlier than January 1, 2009; as indicated, it would expire on December 31, 2010. (Other Conditions 2, 4). Saline Water Intrusion The CUP recommended by the TSR contains a permit condition requiring the City to implement the proposed saline water monitoring plan by sampling and analyzing Saline Water Monitor Wells SWMW 1-6 and UFAS production wells 401, 403, 405, 407, 409, 411, 413 and 415 quarterly for water levels, chloride and total dissolved solids. (Other Condition 11) The CUP recommended by the TSR contains a permit condition authorizing the District to modify the allocation granted to the City in whole or in part or to otherwise curtail or abate the impact in the event of saline water intrusion. (Other Condition 14) The CUP recommended by the TSR contains a permit condition requiring the City to cease withdrawal from any UFAS production well, if any quarterly water sample from that well shows a chloride concentration exceeding 250 mg/l. That same condition would limit the operation of any UFAS production well with a quarterly sample exceeding 250 mg/l to six hours per day with a minimum 24 hours recovery between pumping cycles if subsequent samples contain chloride concentrations between 200 mg/l and 249 mg/l. (Other Condition 25) Environmental Impacts and Avoidance and Minimization The CUP recommended by the TSR contains a permit condition requiring the City to implement the proposed environmental monitoring plan for hydrologic and photo- monitoring at 16 wetland sites within one year of permit issuance and to establish a baseline prior to the initiation of groundwater withdrawals. That same condition requires the City to collect water level data at each wetland site either on a daily or weekly basis and report to the District every six months in District-approved, computer-accessible format. (Other Condition 12) The CUP recommended by the TSR contains a permit condition authorizing the District to revoke the permit in whole or in part or to curtail or abate impacts should unanticipated adverse impacts occur to wetlands, lakes and spring flow. (Other Condition 23) The CUP recommended by the TSR contains a permit condition authorizing the District to require the City to implement the proposed avoidance and minimization plan should unanticipated impacts occur to Wetland A4-2 (a shallow marsh near the middle of the wellfield) within 90 days of notice by the District. That same permit condition authorizes the District to require the City to submit a wetland rehydration plan for any other adversely affected wetland within 30 days of notice by the District and to implement the plan without 90 days of approval by the District. The District would require the City to implement avoidance measures before the wetlands are actually allowed to suffer adverse impacts. (Other Condition 24) Impacts to Other Existing Legal Users of Water The CUP recommended by the TSR contains a permit condition authorizing the District to require mitigation of any unanticipated interference to existing legal users of water due to withdrawals from the Area IV Wellfield. Mitigation may include installation of a new pump or motor, installation of additional drop pipe, new electrical wiring, connection with an existing water supply system, or other appropriate measures. (Other Condition 15) Water Conservation Measures and Reuse The City is implementing extensive water conservation measures. The City’s water conservation plan includes public education measures (e.g., televised public service announcements, helping to create water conservation videos and distributing them to the public, commissioning an award winning native plant mural, providing exhibits and speakers for public events), toilet and showerhead retrofits, and a water conservation based rate structure. A water conservation rate structure provides the potable water customer with an economic incentive to use less water. The most common conservation rate structure is a tiered-rate whereby the cost per gallon of water increases as the customer uses more water. While the District reviews the rate structure to evaluate whether it will achieve conservation, it does not mandate the cost per gallon of water. An audit of the City’s potable water distribution system was conducted and recent water use records were evaluated to determine if all necessary water conservation measures were in place. The audit indicated that the potable water system has small unaccounted-for water losses, approximately 6.5 percent, and relatively low residential per capita water use. The City has implemented a water conservation plan that implements rule requirements; as a result, the City has provided reasonable assurance that it is implementing all available water conservation measures that are economically, environmentally, or technologically feasible. The City cannot use reclaimed water to meet its potable water demands associated with direct human consumption and food preparation. However, reclaimed water can be used to replace that part of the City’s allocation that is associated with irrigation-type uses. The City has operated a reclaimed water reuse system since 1996. It is projected that 67 percent of the available wastewater flows will be utilized by 2010 for irrigation, with the remainder going to a wetland system during wet weather periods when irrigation demands are low. The City is using reclaimed water to the extent it is economically, environmentally and technologically feasible. In the case of public supply, the District looks to the amount of water requested for each person in a projected population in determining whether the water will be used efficiently. The metric that the District normally considers when conducting this part of the evaluation is the per capita usage. Population Projections and Per Capita Water Use As indicated, the proposed CUP would expire on December 31, 2010. Although the City and District would anticipate an application for renewal to be filed, demand for water projected beyond December 31, 2010, is not relevant to the need for the proposed CUP. In the case of public supply, projected demand for water usually is calculated by multiplying the projected population times per capita water use. Gross per capita (“GPC”) use in gallons per day (gpd) is the type of metric normally used to project demand for public supply of water. It is based on residential use and all other water uses supplied by the utility, including commercial, industrial, hotel/motel, and other type uses. That includes supply necessary to meet peak demands and emergencies. DEP requires that every public water supply system have an adequate water supply to meet peak demands for fire protection and health and safety reasons. If peak demands are not met, a major fire or other similar catastrophe could depressurize a public water system and possibly cause water quality problems. Projections of need for water in the future must take into account peak demands and emergency needs. Water used for those purposes is included in the historical average daily flows (ADF) from which historical GPC is derived. Unless there is good information to the contrary, in projecting GPC one assumes that those uses will increase roughly in proportion to the residential use. City's Projection Contending that the University of Florida Bureau of Economic and Business Research (BEBR) does not estimate or project population for municipalities, and that BEBR projections are based on historical trends that would under-project population in the City, the City used a different source and method to project population in the City's water service area on December 31, 2010. For its method, the City had Courtney Harris, its Planning Director, project the number of dwelling units that would be developed and occupied in 2011, calculating the additional people associated with each unit (based on the 2000 Census, which identified 2.32 as the average number of persons per dwelling unit in the City), and adding the resulting number to the City’s existing service area population as of 2005. The City's method yielded various results depending on when proposed developments in the City were reviewed. Ultimately, the City projected a population of 60,990 at the end of 2010. The City's method depends on the ability of its Planning Director to accurately predict the timing of new residential construction and sales, which is not easy to do (as indicated by the different results obtained by the City over time), since there are many factors affecting residential development and the real estate market. The ultimate predictions of the City's Planning Director assume that residential development will continue at an extraordinarily high pace although there already was evidence of downturn. The City's method also assumed that all new units will be sold (which, again, is contingent on market conditions) and fully occupied (although a 90 percent occupancy rate would be a more realistic.) The method also does not account for decreases in population in a number of areas in the Titusville service area (while overall population increased, mostly as a result of growth that has been occurring in a single census tract.) The City's witnesses then calculated a per capita water use rate by averaging the actual rates for the 11 years from 1995 through 2005, which resulted in projected per capita water use rate of 100.35, and a projected demand of 6.12 mgd at the end of 2010. The justification for averaging over 11 years, instead of the last five years, was that the last five years have been unusually wet, which would depress demand to some extent. However, using 11 years also increased the average water use by taking into account the higher use rates common before conservations measures, including conservation rates, went into effect (in particular, 123.75 gpd for 1995, 122.36 gpd for 1996, and 109.94 gpd for 1998.) Since 1998, and implementation of the conservation rates and other measures, water use rates have been significantly lower. While the average over the last 11 years was 100.35 gpd, the average over the last five years (from 2001- 2005) was just 92.15 gpd. Averaged since 1998, the City's water use rate has been 93.34 gpd. While wetter-than-normal conditions would be expected to depress water use to some extent due primarily to decreased lawn irrigation, many of the City's water customers have private irrigation wells for this purpose. Besides, Mr. Peterson, the City's Water Resources Manager, testified that not many of the City's water customers use potable water for lawn irrigation due to the new conservation rates. Petitioners' Projection Miami Corporation's population expert, Dr. Stanley Smith, is the Director of BEBR. Dr. Smith projected the population for the City's service area by first developing an estimate of the population of the water service area in 1990 and 2000 using block and block group data, and then using those estimates to create estimates from 2001-2005. Dr. Smith then projected population in the City's water service area using a methodology similar to what BEBR uses for county projections. Dr. Smith's methodology used three extrapolation techniques. He did not use a fourth technique, often used at BEBR, called shift-share, because he believed that, given Titusville's pattern of growth, using shift-share might produce projections that were too low. In developing his final projections, Dr. Smith also excluded the data from 1990 to 2000 because growth during that period was so slow that he felt that its inclusion might result in projections that were too low. Dr. Smith's approach varied slightly from the typical BEBR methodology in order to account for the fact that the City's growth has been faster since 2000. Dr. Smith applied an adjustment factor based on an assumption also used by the City's expert that 97.3 percent of the projected population within the City's water service area in 2010 would be served by the City. Using his method, Dr. Smith projected the population of the Titusville water service area to be 53,209 on December 31, 2010. Based on recent population estimates, Dr. Smith believes that, if anything, his projections are too high. It was Dr. Smith's opinion from the data that the annual increases for Titusville and the Titusville water service area peaked in 2003 and that they had been declining since that time. That was especially true of 2006, when the increase was the smallest that it had been for many years. Petitioners' expert, Mr. Drake, calculated a per capita water use rate by averaging the actual rates for the most recent five years (2002-2006), which resulted in a per capita water use rate of 89.08 gpd, and a projected demand of 4.74 mgd at the end of 2010. He also calculated a per capita water use rate for 2006, which came to 88.65 gpd, which would give a slightly lower projected demand of 4.72 mgd. Ultimate Finding of Projected Water Demand Based on all the evidence, it is found that Dr. Smith's projection of the population that will use City water on December 31, 2010, is more reasonable than the City's projections. The City and District contend that, regardless of the calculated per capita water use rate, it is appropriate to base the City's allocation on a rate of 100.35 gpd because 90 to 100 gpd is very conservative per capita water use rate for a public water supply utility. However, the allocation should be based on the best estimate of actual demand, not a general rate commonly assumed for water utilities, even if conservative. The City and District also contend that it is appropriate to base the City's allocation on a higher use rate because the climatic conditions experienced in the City over what they considered to be the most recent five years (2001- 2005) have been average-to-wet. More rainfall generally means less water use, and vice-versa, but the greater weight of the evidence proved that the City's demand for water has not varied much due to climatic conditions in recent years (after implementation of conservation measures, including conservation rates.) (City Exhibit 19, which purported to demonstrate the contrary, was proven to be inaccurate in that it showed significantly more water use during certain drier years than actually occurred.) However, in 2000--which was after the implementation of conservation rates and also the City's driest year on record (in approximately 75 years)--the water use rate was approximately 97.5 gallons per person per day. An average of the last eight years (1999-2006), which would include all years clearly responsive to the conservation rates as well as the driest year on record, would result in a per capita water use rate of approximately 92.8 gpd, and a projected demand of approximately 4.94 mgd by December 31, 2010. The District argues in its PRO that, because a CUP water allocation is a legal maximum, it would be inappropriate to base the City's water allocation on demand during a wet or even an average year (which, it says, would set the permittee up to violate its permit requirements 50 percent of the time). If, instead, the City's water allocation were based on demand during 2000, the driest year on record, projected demand would be approximately 5.2 mgd on December 31, 2010. Those calculated water allocations--i.e., either the 4.94 mgd or the 5.2 mgd--would then be compared to the probable safe and reliable yield of 4.5 mgd from Areas II and III to determine the deficit on an annual average basis. Allowing a reasonable margin of error for the uncertainties of the predictions involved, a reasonable maximum annual average allocation for the proposed Area IV Wellfield would be 0.75 mgd. Mr. Jenkins suggested in rebuttal that, if the need for water is less than that set out in the proposed CUP in the TSR at issue, a CUP should nonetheless be issued but with lower water allocations. While the evidence supports a reduction of the annual average limit from 2.75 mgd to 0.75 mgd, there was insufficient evidence to show how the other water allocation limits in the proposed CUP should be changed. For the past 12 years, the City of Titusville has been able to purchase water under a contract with the City of Cocoa to meet all of its demands, including any peak or emergency water demands. Under the take-or-pay provision in the contract currently in effect, the City must pay for 0.5 mgd and presumably would take and use at least that amount so long as the contract remains in effect. This would reduce the City's projected water supply deficit through the end of 2010, and the City could rely on the Cocoa contract to cover any additional demand through the end of 2010 without Area IV. However, under the contract, the City can give notice on or before April 1 of the year in which it intends to terminate the contract effective October 1 of the same year. If a CUP for Area IV is issued, the City could terminate the current contract effective as early as October 1, 2008. It also is possible that the contract could be negotiated so that its termination would coincide with the time when the Area IV Wellfield becomes operational if not near October 1 of the year. As indicated, even if the contract remains in place, to the extent that the City receives water from the City of Cocoa for potable use during either 2009 or 2010, the allocations under the proposed TSR will be reduced an amount equivalent to the quantity provided to the City by Cocoa in that year. Finally, as indicated, the existing CUP for Areas II and III is set to expire in February 2008. Although it is anticipated that the City will apply to renew the existing CUP for Areas II and III, and that the District will approve a renewal at some level, it is not clear how much production will be approved for Areas II and III for the years 2009 and 2010. Meanwhile, the CUP proposed for Area IV provides that the combined annual groundwater withdrawals for public supply for the Areas II, III, and IV may not exceed 5.79 mgd for 2009 and 6.01 mgd in 2010. Based on the findings in this case, those figures should be reduced to no more than 5.2 mgd, and it must be anticipated that a similar condition would be placed on any renewal of the existing CUP for Areas II and III as well. Site Investigation At the time the City decided to apply for a CUP for Area IV, it was known that the UFAS in much of Brevard County was not suitable as a source of potable water supply, but there was believed to be a tongue of the UFAS in the northwest corner of the County and extending towards the southeast, and narrowing in that direction, that might be suitable for that purpose, particularly in the upper part of the aquifer. Because there was insufficient information to adequately evaluate the whether proposed Area IV, which was located along the Florida East Coast Railway (FEC) Right-of-Way (ROW), could be used for that purpose, the City’s consultant, Barnes, Ferland and Associates (BFA), designed a drilling and testing program to collect site-specific information in order to characterize the groundwater quality, identify the thickness of the freshwater zone in the UFAS, and determine hydraulic parameters for the groundwater system. In addition, DRMP conducted an environmental assessment of the Area IV Wellfield and surrounding property. The drilling and testing program designed by BFA for the Area IV Wellfield was similar to other hydrogeologic investigations conducted in the region with respect to wellfields operated by the City of Edgewater, the City of New Smyrna Beach, the City of Ormond Beach, the Orlando Utilities Commission and Orange County. The drilling and testing program for the Area IV Wellfield included Time-Domain Electromagnetic Mapping ("TDEM") performed by SDII Global, a consultant retained by the District. TDEM is not typically used for the hydrogeologic investigation of a new wellfield. The TDEM technique involves estimating the depth to the 250 mg/l and 5,000 mg/l chloride concentration in the groundwater system using electrical resistivity probes. The technique was applied at four locations along the FEC Right-of- Way. In addition to the TDEM study, BFA installed three test production wells along the FEC ROW, collected lithologic samples with depth, performed borehole aquifer performance and step drawdown tests at two test sites and recorded water quality with depth through grab and packer samples. The northernmost test production well was Test Site 1, which corresponds to Area IV production well 401. The middle test production well was Test Site 3, which corresponds to either Area IV Well 412 or Area IV Well 413. The southernmost test production well was Test Site 2, which is located approximately 1.5 miles south of the southernmost Area IV production well. Test Sites 1 and 2 were constructed first and Test Site 3 was drilled later because of unfavorable water quality conditions encountered at Test Site 2. Test Site 1 is located on the FEC ROW approximately 430 feet southeast of the Volusia-Brevard County line. At Test Site 1, BFA installed a test-production well (UF-1D), a UFAS monitor well (UF-1S), and a SAS monitor well (SA-1) in 2001. In 2005 BFA installed two additional SAS monitor wells (MW-1 and RW-1) near Test Site 1. The test production well was drilled to a depth of 500 feet below land surface and then back-plugged to a depth of 250 feet below land surface and cased to a depth of 105-110 feet below land surface. Test Site 2 is located on the FEC ROW approximately 2.8 miles southeast of the Volusia-Brevard County line. At Test Site 2, BFA installed a single UFAS Monitor Well (UF-2S). The monitor well was drilled to a total depth of 210-220 feet below land surface. Test Site 3 is located on the FEC ROW approximately 1.4 miles southeast of the Brevard-Volusia County line. At Test Site 3, BFA installed a test production well (UF-3D), a UFAS monitor well (UF-3S), and a SAS monitor well (SA-3). The test production well was drilled to a depth of 500 feet below land surface and then back-plugged to a depth of 210 below land surface.. Since Test Site 3 is either Area IV Well 412 or 413, and assuming production well 415 will be located 1,200 feet southeast of Test Site 3, this means that Test Site 2 is located at least one mile southeast of the southernmost Area IV production well. Test Sites 4 and 6 are located approximately three miles southeast of Brevard-Volusia County line. SAS test production wells were constructed at both sites to a total depth of about 20-30 feet below land surface. The site-specific hydrogeologic data collected by BFA as part of the drilling and testing program verified the groundwater basin and flow direction shown in Figure 15 of City Exhibit 523. DRMP’s environmental assessment of the Area IV Wellfield spanned the period from 2002 through 2006. In Spring 2002, DRMP evaluated areas within the predicted 0.2 foot drawdown contour by assessing wetland vegetation, photographing wetlands, noting wetland hydrologic conditions, investigating soil condition and wildlife utilization and evaluating surrounding land uses and natural communities. In Fall 2002, DRMP evaluated potential monitoring sites both on and off Miami Corporation's property by assessing wetland vegetation composition and hydrologic conditions, investigating soil conditions and wildlife utilization, evaluating surrounding land use and natural communities and locating suitable control sites. In Fall 2003, DRMP evaluated potential wetland monitoring sites near the southernmost Area IV production wells by assessing wetland vegetation composition and hydrologic conditions, investigating soil conditions and evaluating surrounding land uses and natural communities. In Spring 2005, DRMP assessed wetlands surrounding the Area IV Wellfield by evaluating wetland vegetation composition and hydrologic conditions, photographing wetlands, investigating soil conditions, evaluating surrounding land use and natural communities and collecting GPS points. In Fall 2005, DRMP investigated the Clark property by evaluating wetland vegetation and hydrologic conditions, photographing wetlands, investigating soil conditions and wildlife utilization and evaluating surrounding land uses and natural communities. In Spring 2006, DRMP developed a revised environmental monitoring plan and avoidance and minimization plan based on the new SDI MODFLOW Model by locating the final wetlands monitoring sites, developing the hydrologic and vegetative monitoring protocol, establishing the scope of the baseline study, reviewing the preliminary pipeline routing, construction and discharge inlet structures and preparing and submitting plan documents to the District. DRMP evaluated the occurrence of listed animal and plant species in the vicinity of the Area IV Wellfield as part of its environmental assessment. DRMP reviewed the Natural Areas Inventory for the Area IV Wellfield site, which identifies occurrences of listed species within a designated area. Additionally, DRMP made note of animal and plant species during the site visits in 2002, 2003, 2005, and 2006. DRMP evaluated the Farmton Mitigation Bank as part of its environmental assessment. DRMP reviewed the permit files for the Farmton Mitigation Banks, including the annual environmental monitoring reports prepared by Miami’s consultants. In 2005, DRMP conducted a field assessment of the Clark property including a thorough investigation of the fish pond, which Petitioners claim was adversely impacted during one or more of the APTs conducted by the City at the Area IV Wellfield. It was not necessary for the City’s environmental consultants to visit each and every wetland in the vicinity of the proposed Area IV Wellfield. Typically, only representative wetland sites are visited during the environmental assessment process. The scope of the City's hydrologic and environmental investigation of the Area IV Wellfield was adequate and consistent with industry standards and the District protocol for testing aquifers and characterizing aquifer performance and groundwater quality at the site. Nonetheless, Petitioners contend that there were serious deficiencies in the investigation's implementation and that additional investigation should have been performed. Hydrostratigraphy The SAS at the Area IV Wellfield is 40-to-50 feet deep and is composed primarily of unconsolidated sand, shell and silt. The intermediate confining unit (ICU) at the Area IV Wellfield consists of the Hawthorne Group and ranges in thickness from 40 to 60 feet. The top of the ICU is located 40- 50 feet below land surface and the bottom of the ICU is located 100 feet below land surface. This unit is composed of varying amounts of sand, shell, silt, indurated sandstone, clay, and some limestone. It tends to restrict the movement of water from the SAS to the UFAS. The UFAS at the Area IV Wellfield is a fairly homogenous limestone unit, which starts approximately 100 feet below land surface and extends to about 450 feet below land surface or 425 feet below mean sea level. It consists of the Ocala Group and grades into the upper portion of the Avon Park Formation. The middle confining unit (MCU) at the Area IV Wellfield starts at approximately 450 feet below land surface or 425 feet below mean sea level and ends approximately 1,000 feet below land surface. It comprises a denser, fine-grained dolomitic limestone within the Avon Park Formation. The MCU restricts the movement of water between the UFAS and LFAS. The location of the MCU at the Area IV Wellfield was determined by examining cuttings and video logs collected during drilling performed at Test Sites 1 and 3 and by measuring various properties of the aquifer with down-hole geophysical techniques. The MCU can be distinguished from the UFAS by the presence of both dolomite and limestone. The lithologic log for Test Site 1 indicates the presence of gray/tan limestone between 450 and 460 feet below land surface and light/gray limestone and dolomitic limestone between 460 and 470 feet below land surface. The lithologic log for Test Site 3 indicates the presence of tan dolomitic limestone between 450 and 460 feet below land surface and tan limestone and dolomitic limestone between 460 and 470 feet below land surface. After examining the video log for Test Site 1, Petitioners’ expert, Dr. Thomas Missimer, noted a “lithologic change” at 477 feet below land surface. Other characteristics of the MCU are a lower resistivity and a sharp decrease in flow. The data collected at Test Site 1 shows a reduction in resistivity at approximately 470 feet below land surface. The flow meter log for Test Site 1 exhibits a decrease in flow at approximately 450 feet below land surface. Petitioners’ experts, Thomas Missimer, Alge Merry, and Bruce Lafrenz contend that the top of the MCU at the Area IV Wellfield is located deeper than 450 feet below land surface or 425 feet below mean sea level. This contention is based on regional reports, the geophysical logs reported by BFA, and one of the packer tests conducted at the bottom of the test wells that showed a pumping rate of 85 gpm. The greater weight of evidence indicates the top of the MCU at the Area IV Wellfield starts at the elevation identified by BFA. The regional reports are not based on data collected from the immediate vicinity of the Area IV Wellfield. Additionally, the BFA's professional geologists who determined the top of the MCU included Joel Kimrey, who was the former head of the local USGS office, and had more experience with the hydrogeology of the MCU in Brevard and Volusia than any of the Petitioners’ geologic experts. Also, the BFA geologists had access to the drill cuttings, which were unavailable to the Petitioners’ experts when they made their determination. Finally, the pumping rate recorded during the packer test could be explained by an area of higher permeability within the MCU. More likely, the packer may have been partially open to the bottom of the UFAS. The Lower Floridan Aquifer System (LFAS) starts at about 1,000 feet below land surface and ends approximately 2,300 feet below land surface. Head Difference Data Head refers to the pressure within an aquifer. In an unconfined aquifer, it is the water table. In a confined or semi-confined aquifer, it is the level to which water would rise in a well penetrating into the aquifer. Head difference refers to the numerical difference between two water levels either in different aquifer at the same location or different locations in the same aquifer. In the context of the Area IV Wellfield, static head difference is the difference between the elevation of the water table in the SAS and the elevation of the potentiometric surface of the UFAS under non-pumping conditions at the same location. The static head difference reflects the degree of confinement in the ICU. If the static head difference between the SAS and UFAS is a large number, this indicates a high degree of confinement between the two systems. BFA took static head measurements at SAS and UFAS monitor wells located at Test Sites 1, 2 and 3 in January 2004, April 2004, and July 2006 and calculated the head difference based on those measurements. District expert, Richard Burklew, was present when the measurements were taken in April 2004 and July 2006 and verified the readings made by the City’s consultants. During all three sampling events a downward head gradient was noted at each site, which means the water table had a higher elevation than the potentiometric surface of the UFAS. In January 2004, the measured head difference at Test Sites 1, 2 and 3 were 6.2 feet, 5.5 feet and 5.9 feet, respectively. In April 2004, the measured head difference at Test Sites 1 and 3 were 8.1 feet and 8.1 feet, respectively. Finally, in July 2006, the measured head difference at Test Sites 1, 2 and 3 were 8.6 feet, 6.6 feet and 9.3 feet, respectively. The average of those observed head differences was 7.46 feet. At the time the head difference measurements were taken in July 2006, the region had experienced a rainfall deficit of 17 inches over the prior 12 months. Petitioners contend that the rainfall deficit may have skewed that head difference observation. However, according to the District’s expert, Richard Burklew, this would not necessarily have affected the head difference measurements because the hydrologic system would seek equilibrium, and the head difference would be the same. BFA collected static head difference measurements from Test Sites 1, 2 and 3 during both wet and dry seasons. The measurements do not show significant differences between seasons. Head difference data collected from hundreds of other Florida locations also do not show significant differences between seasons. This suggests that static head difference remains fairly constant at the Area IV Wellfield year round. Water level measurements taken by the City’s consultants from the wells on Clark’s property and reported in City Exhibit 52 do not determine static head difference between the SAS and UFAS because the exact construction of the wells was unknown, the completion depth of certain wells was unknown, the operational history of the wells was unknown, and the putative SAS well was located several hundred feet away from the UFAS well. For example, the depth of one of the wells is reported as 57 feet, which could easily be located in the ICU. If that is the case, then the head difference measured by comparing to the water level in this well would only be the head differential between the ICU and the UFAS. Finally, the Clark property is located in a more elevated region than Test Sites 1, 2, and 3, which means the water table will be lower and the head difference will be less than at the Area IV Wellfield. Water level measurements reported in the driller’s completion log for Wells 4175, 4176, 4177, and 5230 on Miami Corporation’s property do not determine static head difference between the SAS and UFAS because critical information concerning the construction of these wells is unknown. Additionally, the wells are much shallower than test production wells at Test Sites 1, 2 and 3. The water level measurements reported in the driller’s completion log for Wells 4175, 4176, 4177, and 5230 are not necessarily inconsistent with head difference measurements collected by BFA at Test Sites 1, 2 and 3. The head differences at these four well sites could be 6, 4, 7, and 6 feet, respectively, depending how the water measurements were made. Also, the measurements made by a driller could not be expected to be as accurate as measurements made by trained hydrologists. Further, if the soils in the vicinity of Well 4177 indicated a depth to water table of 5 feet below land surface, that would not necessarily be inconsistent with the head difference measurements collected by BFA at Test Sites 1, 2 and 3. Depth to Water Table The depth to water table is defined as the difference between the land surface elevation and the head value in the SAS. The water table in the Area IV Wellfield area is consistently close to land surface and often above land surface. The construction of numerous above-grade forest roads and roadside ditches on the property surrounding the Area IV Wellfield has had the effect of impounding surface water and raising the water table near land surface. The Area IV Wellfield and vicinity have a variety of soil types. The predominant wetland soil type is Samsula Muck, which is classified as a very poorly drained soil with a water table either at or above land surface. The predominant upland soil type is Myakka Fine Sand, which is characterized by a water table within a foot of land surface during four months of the year and within 40 inches of land surface during remainder of the year. The average depth to water table at the Area IV Wellfield is approximately 1 foot based on soil types. SAS levels at the three Farmton Mitigation Banks were measured at piezometers installed by Miami Corporation’s consultants from 2001 through 2005. This data confirms the water table at the Area IV Wellfield is consistently close to land surface and frequently above land surface. It indicates the depth to water table is typically less than 3 feet and in many cases within a foot or two. Also, it does not matter whether any of the piezometers were located near wetlands because they show seasonal variation in water levels, where the water table changes from slightly above land surface to below land surface over the course of a year. A water table depth of 6-14 feet below land surface is not realistic at the Area IV Wellfield based on soil conditions and vegetation communities. Such a depth to water would be indicative of a landscape composed primarily of xeric scrub communities with few, if any wetlands. These types of communities do not exist near the Area IV Wellfield. Aquifer Performance Tests The flow of water through an aquifer is determined by three primary hydraulic coefficients or parameters: transmissivity; storage; and leakance. An aquifer performance test (APT) is a pumping test where water is removed from the well at a set rate for a set period of time and drawdown is measured in the well and in neighboring monitor wells to calculate the hydraulic properties of the hydrologic formation. The main hydraulic properties determined through an APT are transmissivity, leakance, and storativity. These properties are used to characterize the water production capabilities of the hydrologic formations. These properties are also used in groundwater modeling to project impacts for longer periods of time and larger distances. Aquifer parameters can be determined from an aquifer performance test using analytical "curve-matching" techniques or a groundwater flow model such as MODFLOW. Curve-matching techniques involve the creation of a curve through measurement of drawdown and the matching of that curve to standard curves derived using analytical equations. Hydraulic conductivity or “K” is the term used to describe the ability of a hydrogeologic unit to conduct fluid flow. It is usually expressed in terms of horizontal hydraulic conductivity or “Kx” and “Ky” and vertical hydraulic conductivity or “Kz.” Transmissivity is the term used to describe the rate of movement of water for a given thickness of a hydrogeologic unit. It is the hydraulic conductivity of an aquifer times its thickness. Storativity is the term used to describe the amount of water that is released from any aquifer for a given unit change in head, or the compressability of the aquifer system. This value can normally be determined during a 4-5 day aquifer performance test. Specific yield is the term used to describe the long- term capacity of an aquifer to store water. This value cannot normally be determined during a 4-5 day aquifer performance test. Leakance is the term used to describe the vertical movement of water from above or below a given unit in response to changes in head or pumpage. APTs are standard practice for evaluating the suitability of a new area for development as a wellfield. Three APTs were conducted at Test Sites 1 and 3. No aquifer performance tests were conducted at Test Site 2. Petitioners question whether the APTs for the Area IV Wellfield were conducted by BFA in accordance with the applicable standard of care in the hydrogeologic profession. The District’s expert, Richard Burklew, believes the three APTs conducted at Test Sites 1 and 3 were adequate for purposes of determining appropriate aquifer parameters. Two APTs were conducted by BFA at Test Site 1. The first test was conducted on January 30-31, 2001, when Well UF-1D was pumped at about 700 gpm or approximately 1 mgd for 44-48 hours, and Wells UF-1S and SA-1 were used as monitor wells. The second test was conducted on April 8-12, 2003, when Well UF-1D was pumped at about 700 gpm or approximately 1 mgd for 96 hours, and Wells UF-1S and SA-1 were used as monitor wells. Using several analytical curve-matching techniques, BFA calculated a transmissivity of 7,300 ft2/day and a storativity of about 0.00036 on the basis of the 2001 APT at Test Site 1. They were unable to calculate a leakance value because the drawdown data did not reasonably fit the curve- matching techniques. For that reason, BFA performed another APT at Test Site 1 in 2003. Using several analytical curve-matching techniques, BFA calculated a transmissivity of 7,300 ft2/day, a storativity of 0.00045, and a leakance of 0.00029 day-1 on the basis of the 2003 APT at Test Site 1. One APT was conducted by BFA at Test Site 3 on April 10-13, 2001. Well UF-3D was pumped at about 700 gpm or approximately 1 mgd for 70 hours, and Wells UF-3S and SA-3 were used as monitor wells. Using several analytical curve-matching techniques, BFA calculated a transmissivity of 7,450 ft2/day, a storativity of 0.0002, and a leakance of 0.00026 on the basis of the 2001 APT at Test Site 3. However, because of problems with the test, leakance was not considered a good match for the analytical techniques. Leakance values determined by BFA from the APTs conducted at Test Sites 1 and 3 were based on the application of analytical curve-matching techniques. The leakance values determined through the conventional type curve-matching techniques employed by BFA are typically higher than the actual leakance values. They are also inherently limited because they assume the calculated leakance is due entirely to the ICU rather than a combination of the ICU and MCU as is the case at the Area IV Wellfield. The analytical techniques employed by BFA were unable to calculate separate leakance values for the ICU and the MCU. The best way to determine leakance values for each of these confining units was to use a MODFLOW model and observed head difference data. This was done by the City’s consultant, SDI, and is described in greater detail, infra. In January 2004, several APTs were conducted using two SAS wells referred to as Test Sites 4 and 6. These test sites are located more than 3 miles from the Clark property. Constant rate and variable rate APTs were conducted at both sites. During the constant rate tests, 230 gpm or about 0.33 mgd was pumped from the SAS well. Using several analytical curve-matching techniques, BFA calculated a transmissivity of 2,500 ft2/day for the surficial aquifer at those locations. Water Quality Data Consistent with the general understanding of the freshwater groundwater tongue extending from Volusia into Brevard County, the TDEM performed by SDII Global indicated that the depths to the 250 mg/l and 5,000 mg/l chloride concentrations decrease as one proceeds south along the FEC ROW. For example, the depths to the 250 mg/l and 5,000 mg/l chloride concentrations were 442 feet and 542 feet, respectively, at the northernmost test site, which is somewhat north of the City’s Test Site 1. The depth to the 250 mg/l and 5,000 mg/l chloride concentrations were 406 feet and 506 feet, respectively, at the southernmost test site, which is somewhat south of the City’s Test Site 2. Sixteen water quality grab samples were collected every 20-30 feet as the test production well at Test Site 1 was drilled, beginning at 120 feet below land surface and ending at 500 feet below land surface. This type of sampling is referred to as drill-stem testing. The chloride concentrations in the samples collected from 120 feet and 480 feet below land surface were 59 mg/l and 879 mg/l, respectively. The chloride concentrations in these samples did not exceed 250 mg/l until a depth of 460 feet below land surface was reached. Six water quality grab samples (drill-stem tests) were collected every 20-30 feet as the test production well at Test Site 2 was drilled, beginning 120 feet below land surface and ending 210 feet below land surface. The chloride concentrations in the samples collected from 120 feet and 210 feet below land surface were 124 mg/l and 845 mg/l, respectively. The chloride concentrations in these samples did not exceed 250 mg/l until a depth of 180 feet below land surface. Fourteen water quality grab samples (drill-stem tests), were collected every 20-30 feet as the test production well at Test Site 3 was drilled, beginning at 120 feet below land surface and ending at 500 feet below land surface. The chloride concentrations in the samples collected from 120 feet and 500 feet below land surface were 45 mg/l and 90 mg/l, respectively. The chloride concentrations in these samples never exceeded 90 mg/l. A packer test is a procedure used to isolate a particular well interval for testing. It is performed using an inflatable packer on the drill stem, which is placed at the interval to be blocked. The packer is inflated with water or air to isolate the interval to be sampled. A packer test can be used to collect water samples for analysis. Several water quality grab samples were collected in packer tests at specific depth intervals at Test Site 1. At the interval of 331-355 feet below land surface one sample was taken with a chloride concentration of 672 mg/l. At the interval of 331-400 feet below land surface, one sample was taken with a chloride concentration of 882 mg/l. Finally, at the interval of 442-500 feet below land surface two samples were taken with chloride concentrations of 2,366 mg/l and 2,2712 mg/l. Several water quality grab samples were collected in packer tests at specific depth intervals at Test Site 3At the interval of 270-295 feet below land surface, two samples were taken with chloride concentrations of 74 mg/l and 450 mg/l. At the interval of 340-400 feet below land surface, two samples were taken with chloride concentrations of 64 mg/l and 134 mg/l. Finally, at the interval of 445-500 feet below land surface, two samples were taken with chloride concentrations of 1,458 mg/l and 2,010 mg/l. No packer test samples were collected at Test Site 2, where it was clear that water quality was too poor to be used as a fresh groundwater source. The packer test samples collected at Test Sites 1 and 3 were collected using a higher pumping rate than typically recommended by the DEP and the United States Environmental Protection Agency (EPA). Consequently, the chloride concentrations in these samples are probably higher than the chloride concentrations found in the undisturbed groundwater at those depths. Since the packer sits on top of the borehole and restricts flow from above, it generally is reasonable to assume that a packer test draws more water from below than from above the packer. However, if transmissivity is significantly greater just above the packer, it is possible that more water could enter the packer from above. Seven water quality grab samples were collected every 12 hours during the 2001 APT at Test Site 1. The chloride concentrations in the first and last grab sample were 59 mg/l and 58 mg/l, respectively. Seven water quality grab samples were collected every 12 hours during the 2001 APT at Test Site 3. The chloride concentrations in the first and last grab samples were 19 mg/l and 52 mg/l, respectively. Nine water quality grab samples were collected every 12 hours during the 2003 aquifer performance test at Test Site The field-measured chloride concentrations in the first and last grab samples were 56 mg/l and 55 mg/l, respectively. The laboratory measured chloride concentrations in the first and last grab samples were 66 mg/l and 74 mg/l, respectively. The average chloride concentration for the water samples collected during the three APTs at Test Sites 1 and 2 was about 50 mg/l. Water is composed of positively charged analytes (cations) and negatively charged analytes (anions). When cations predominate over anions, the water is said to have a positive charge balance; when anions predominate over cations, the water is said to have a negative charge balance. Theoretically, a sample of water taken from the groundwater system should have a charge balance of zero. However, in real life this does not occur because every sample contains some small trace elements that affect its charge balance. Therefore, in the field of hydrogeology, a positive or negative charge balance of 10 percent or less is accepted as a reasonable charge balance error, and this standard has been incorporated in the permit conditions recommended by the District for the City’s permit. With one exception, all the water quality samples collected by BFA from Test Sites 1-3 had an acceptable charge balance. The one exception was a sample collected from the packer interval of 270-295 feet below land surface at Test Site 3 with a chloride concentration of 74 mg/l. This sample has a positive charge balance of 32.30 percent. The sample collected from the packer interval of 270- 295 feet below land surface at Test Site 3 has an overabundance of cations probably caused by grouting and cementing of the packer prior to taking the sample. Since chloride is an anion and not a cation, any error associated with this sample would not effect the validity of the 74 mg/l chloride concentration measured in this sample. This conclusion is also supported by the fact that two samples were collected from the same well at a packer interval of 340-400 feet below land surface with acceptable charge balances and they contained chloride concentrations of 64 mg/l and 134 mg/l. The District’s experts, Richard Burklew and David Toth, believe the 450 mg/l chloride concentration measured in a sample taken from the packer interval of 270-295 feet below land surface at Test Site 3 is a faulty measurement and should be discarded as an outlier. Dr. Toth testified that the sodium to chloride ratio indicates there was a problem with this measurement, which would call into question the reported chloride value. In 2004 and 2005, the City collected SAS water quality samples from Test Sites 4 and 6 and Monitor Wells MW-1 and RW-1 near Test Site 1. The samples were analyzed for all applicable water quality standards, which might preclude use of water from the SAS extraction wells to directly augment wetlands. The analyses found that the SAS water quality near the proposed extraction wells was very similar to the SAS water quality near the Area IV production wells and that water could be applied to the wetlands without any adverse water quality consequences. Area IV UFAS Flow Patterns and Basin Boundaries Although the United States Geologic Survey (USGS) potentiometric surface maps do not show any data points in the vicinity of the proposed Area IV Wellfield, and they are not sufficient by themselves to formulate opinions regarding the future operation or impacts of the proposed wellfield, Petitioners contend that these potentiometric surface maps demonstrate that the freshwater found in the UFAS at the Area IV Wellfield is due to local freshwater recharge only and not freshwater flow from the northwest. They point to a regional report indicating that there is a groundwater basin divide just north of the Area IV Wellfield. This report is based on a 1980 USGS potentiometric surface map. However, another regional report indicates that the groundwater basin divide occurs south of the Area IV Wellfield. This report is likely based on a 1998 USGS potentiometric surface map. Because of the lack of data points in rural northwest Brevard County, the City did not rely on any groundwater basin divide maps, but rather collected site specific information regarding the proposed Area IV Wellfield. The District’s expert and the Petitioners’ own expert (the sponsor of Petitioners' potentiometric surface map exhibits) noted several errors in the flow direction arrows added by Petitioners to the maps. In addition, after reviewing the potentiometric surface maps presented by Petitioners, the District’s expert concluded that, in addition to local freshwater recharge, the predominant flow into the vicinity of the Area IV Wellfield is generally from the northwest and southwest. To confirm his opinion, the District’s expert examined the head difference data collected in July 2006. At well UF-1S, the UFAS observation well at site 1, the elevation in the well was 16.27 NGVD. At site 3, which is southeast of site 1, the elevation in the UFAS observation well was 15.68 NGVD. At site 2, which is southeast of site 3, the elevation in the UFAS well was 13.87 NGVD. Since water generally flows from the highest to lowest head measurements, these measurements indicated that water would have been flowing from the northwest to the southeast in the vicinity of Area IV. However, the potentiometric surface can change both seasonally and yearly; likewise, the basin boundaries may also change. SAS and UFAS Drawdown Predicting drawdown in the SAS and UFAS in the vicinity of the proposed Area IV Wellfield is important to several permitting criteria, including interference with existing legal uses and impacts on wetlands, both of which relate to the public interest. During the permit application review process, the City submitted a succession of models to provide reasonable assurance that the proposed Area IV Wellfield would not result in unacceptable drawdown. Initially, BFA prepared and submitted groundwater flow simulations of the Area IV Wellfield prepared using an analytical model known as the “Multi-Layer/SURFDOWN Model.” Although the District initially accepted the submission as providing reasonable assurance to support the District's initial TSR, Miami Corporation petitioned and criticized the City's model as not actually providing reasonable assurance, both because of its predicted SAS drawdown and because it was an analytical model (which can only represent simple conditions in the environment, assumes homogenous conditions and simple boundary conditions, and provides only a model-wide solution of the governing equation). By comparison, a numerical model allows for complex representation of conditions in the environment, heterogeneous conditions and complex boundary conditions, and cell-by-cell iterative solutions of the governing equation that are typically performed by a computer. Over the past 10 to 15 years, a numerical model called MODFLOW has become the standard in groundwater modeling throughout the United States and much of the world. All of the Florida water management districts utilize MODFLOW or are familiar with it, so it is a model of choice today for groundwater flow modeling. Despite Miami Corporation's petition, the City and the District maintained that reasonable assurance had been given that operation of Area IV would not result in unacceptable drawdown. Miami Corporation's petition was scheduled for a final hearing in June 2005 that was continued until September 2005 after the first revised TSR was issued in May 2005. The final hearing was continued again until February 2006 to allow discovery and hearing preparation by Vergie Clark, who filed her petition in July 2005. As the case proceeded towards a February 2006 final hearing on the pending petitions, the City eventually made what actually was its second attempt to develop a calibrated MODFLOW model of the Area IV Wellfield. Unbeknownst to the District, BFA already had attempted to develop a MODFLOW Model of the Area IV Wellfield in 2004, with the assistance of Waterloo Hydrogeologic, Inc. (WHI) (which later was retained as Petitioners’ consultant in this case in a reverse of the Hartman client switch). When BFA ended its efforts with WHI, their efforts to calibrate a MODFLOW model for Area IV that would predict acceptable drawdown was unsuccessful, and none of those modeling efforts were submitted or disclosed to the District. In the fall of 2005, the City turned to another consultant, SDI, to attempt to develop a calibrated MODFLOW Model of the Area IV Wellfield. SDI initially prepared a so- called MODFLOW model equivalent of the Multi-layer/SURFDOWN Model prepared by BFA. It was presented to District staff at a meeting held in January 2006 for the purpose of demonstrating to District staff that the MODFLOW model equivalent of the Multi- layer/SURFDOWN Model generated results for the Area IV Wellfield that were not very different from the results obtained by BFA using their Multi-layer/SURFDOWN Model. Petitioners criticized several weaknesses in the MODFLOW equivalent model and maintained that the modeling efforts to date did not give reasonable assurance of no unacceptable SAS drawdown. By this time, the District had decided to retain Dr. Peter Huyakorn, a renowned modeling expert. Based on his recommendations, the District required the City to produce a calibrated MODFLOW model of Area IV (as well as numerical solute transport modeling, which will be discussed below). The scheduled final hearing was continued until September 2006 to allow time for this work to be completed, discovered, and evaluated. After the continuance, the City had SDI prepare a calibrated MODFLOW model to predict the drawdown that would result from operation of Area IV. SDI produced such a model in March 2006. This model predicted less drawdown. Specifically, a steady-state simulation of a 2.75 mgd withdrawal from the proposed 15 UFAS production wells and a 0.18 mgd withdrawal from the four proposed SAS extraction/wetland augmentation wells predicted the maximum drawdown of the surficial aquifer to be less than 0.5 foot (which, as discussed infra, would be acceptable). (UFAS drawdown, which is not an issue, was predicted to be an acceptable 12 feet.) But Petitioners questioned the validity of the model for several reasons, including its suspect calibration. Dr. Huyakorn also had questions concerning the calibration of SDI's March 2006 MODFLOW model, but subsequent work by SDI satisfied Dr. Huyakorn and the District, which issued the TSR and proposed CUP at issue in May 2006 based in part on SDI's March 2006 MODFLOW model, despite Petitioners' criticisms. The final hearing was continued until September 2006 to give Petitioners time to complete discovery on SDI's March 2006 MODFLOW model (as well as the City's new solute transport modeling, which is discussed, infra). To calibrate its March 2006 MODLFOW, SDI first used a transient MODFLOW model to simulate data from the 4-day aquifer performance test (APT) from the Area IV Wellfield sites (the transient APT calibration). (A transient model is used to analyze time-dependent variable conditions and produces a time- series of simulated conditions.) Then, after calibrating to the APT data, SDI used a steady-state, non-pumping MODFLOW model (a time-independent model used to analyze long-term conditions by producing one set of simulated conditions) to simulate the static head difference between the SAS and UFAS (the steady- state head difference calibration). If the head difference simulated in the steady-state calibration run did not match the measured head difference, the ICU leakance was adjusted, and then the revised parameters were rechecked in another transient APT calibration run. Then, another steady-state head difference calibration run was performed in an iterative process until the best match occurred for both calibration models. In order to achieve calibration, SDI was required to make the ICU leakance value several times tighter than the starting value, which was the value derived in the site-specific APT using conventional curve-matching techniques (and relatively close to the values ascribed to the region in general in the literature and in two regional models that included Area IV near the boundary of their model domains--namely, the District's East Central Florida (ECF) model, which focused on the Orlando area to the south and west, and its Volusia model, which focused on Volusia County to the north). SDI's calibrated ICU leakance value derived from calibration to observed static head differences is more reliable than an ICU leakance value derived from an APT using conventional curve-matching techniques. That leaves a question as to the quality of the static head difference measurements used for SDI's calibration. BFA took static head measurements at SAS and UFAS monitor wells located at Test Sites 1, 2 and 3 in January 2004, April 2004, and July 2006. On each occasion, a downward head gradient was noted at each site, meaning the water table (i.e., the SAS) had a higher elevation than the potentiometric surface of the UFAS. In January 2004, the measured head difference at Test Sites 1, 2 and 3 were 6.2 feet, 5.5 feet and 5.9 feet, respectively. In April 2004, the measured head differences at Test Sites 1 and 3 were 8.1 feet and 8.1 feet, respectively. In July 2006, the measured head differences at Test Sites 1, 2 and 3 were 8.6 feet, 6.6 feet and 9.3 feet, respectively. The average of these observed head differences for the Area IV Wellfield was 7.46 feet. BFA's static head difference measurements included both wet and dry seasons. The measurements do not show significant differences between seasons and suggest that static head difference remains fairly constant at the Area IV Wellfield year round. This is typical of head difference data collected from hundreds of other Florida locations because the hydrologic systems seek equilibrium. Petitioners questioned taking an average of the head difference measurements because the region had experienced a rainfall deficit of 17 inches over the 12 months prior to time the measurements in July 2006 were taken. By itself, a rainfall deficit would not affect head difference measurements because the hydrologic system would seek equilibrium. But there was evidence of a possibly significant rainfall near Area IV not long before the July 2006 measurements. If significant rain fell on Area IV, it could have increased the static head differences to some extent. But there was no evidence that such an effect was felt by Area IV. Petitioners also contend for several other reasons that the static head differences used by SDI as a calibration target were "not what they are cracked up to be." They contend that "limited spatial and temporal extent . . . renders them inappropriate calibration targets." But while the site-specific static head difference measurements were limited, and more measurements at different times would have increased the reliability of the average static head difference used in SDI's steady-state calibration, the head difference measurements used were adequate. For a groundwater model of Area IV, they were as good as or better than the head differences used by Petitioners' expert modeler, Mr. LaFrenz of Tetratech, who relied on SAS and UFAS head levels from the regional-scale ECF model, which were measured by the United States Geological Survey (USGS) in May and September 1995. Petitioners also contended that the measured head differences used by SDI for the steady-state calibration of the March 2006 MODFLOW model were significantly higher than other measured head differences in the general vicinity of Area IV. One such location is Long Lake, which has saltwater and an obviously upward gradient (i.e., a negative head difference between the SAS and UFAS), whereas SDI's MODFLOW depicts it as having a five-foot downward gradient (positive head difference). However, all but one of those measurements (including from Long Lake) were from locations five or more miles from Area IV. In addition, the accuracy of the measurements from the closer location (and all but one of the more distant locations) was not clear, so that the seemingly inconsistent head differences measurements may not be indicative of actual inconsistency with the head difference measurements used by SDI. Petitioners also accused the City and its consultants of "playing games with specific yield" to achieve calibration with a tighter-than-appropriate ICU leakance value. But the City and the District adequately explained that there was no merit to the accusations. It was appropriate for SDI to use just the relatively small specific storage component of SAS storativity (the 0.001 value) in its transient calibration runs, instead of the larger specific or delayed yield component. Storativity is not utilized at all in the MODLFOW steady-state calibration runs and steady-state simulations. Based on the foregoing, it is found that Petitioners' factual disputes regarding SDI's calibrated ICU leakance value do not make the City's assurance of no unacceptable drawdown provided by its MODFLOW simulations unreasonable. That leaves several other issues raised by Petitioner with regard to the SDI's March 2006 MODFLOW model. In calibrating its MODFLOW model, SDI utilized a value for the MCU leakance that was twice as leaky as the published literature values for the area, which Petitioners claim would reduce simulated SAS drawdown. Although the use of a higher MCU leakance value in the model may result in a prediction of less SAS drawdown, the actual effect, if any, on the predicted drawdown, was not made clear from the evidence. In any event, an MCU leakance value for Area IV calibrated to site-specific data is more reliable than regional values. Petitioners also accused the City and its consultants of using inappropriate or questionable boundary conditions, topography, and depth to the water table. They also contend that incorrect topography--namely, a nonexistent five-foot ridge or mound northwest of Area IV--provides an artificial source of water for SDI's March 2006 MODFLOW model. But the boundary conditions for SDI's March 2006 MODFLOW model were clear from the evidence and were appropriate; and SDI's topography and water table depth were reasonably accurate (and on a local scale, were as or more accurate than the USGS topographic maps Petitioners were comparing). Besides, Dr. Huyakorn ran the Tetratech model with SDI's leakance value instead of Tetratech's value and got virtually the same drawdown results, proving that differences in topography between the two models made virtually no difference to the drawdown predictions of either model. As for the so-called "flow from nowhere," particle-tracking simulations conducted by experts from both sides established that, with pumping at 2.75 mgd, no water would enter the Area IV production zone from anywhere near the five-foot ridge area for at least 100 years. This gave reasonable assurance that the five-foot ridge or mound had no effect on the simulated results from SDI's March 2006 MODFLOW model. Petitioners also contend that the City's failure to simulate drawdown from pumping during the dry season, as opposed to a long-term average of wet and dry seasons, constituted a failure "to provide reasonable assurances as to the conditions that can be expected as a result of the anticipated operation of the wellfields." But the evidence was clear that long-term, steady-state groundwater model simulations are appropriate and adequate to provide reasonable assurance for CUP permitting purposes. See "Drawdown Impacts," infra. By definition, they do not simulate transient conditions such as dry season pumping. The SDI model predicts a maximum drawdown, from a 2.75 mgd withdrawal from all fifteen UFAS production wells and a 0.18 mgd withdrawal from the four SAS extraction wells, of slightly less than 0.5 feet in the SAS and of 12.0 feet in the UFAS in the immediate vicinity of the Area IV Wellfield. SDI’s model predicts a drawdown of 0.11 feet (approximately 1 inch) in the SAS and a drawdown of 2.2 feet in the UFAS at Ms. Clark’s property, which is located approximately 1 to 1.5 miles north of the Area IV Wellfield. It is found that SDI's March 2006 MODFLOW model for Area IV is the best such model in evidence. That is not to say that the drawdown predicted by SDI's model is a certainty. The other models were not proven to be better than SDI's, but they did demonstrate that simulated results would vary significantly in some cases if SDI's calibration and calibrated ICU leakance values were incorrect. Having more good hydrologic information would have made it possible to reduce the uncertainties present in SDI's model, but it is found that SDI's March 2006 MODFLOW model was sufficient to give reasonable assurance as to SAS and UFAS drawdown from pumping at 2.75 mgd from the UFAS and 0.18 mgd from the SAS for wetland augmentation. Drawdown Impacts As indicated, once drawdown is predicted with reasonable assurance, both interference with existing legal uses and impacts on wetlands, which relate to public interest, must be evaluated. Interference with Legal Uses Using SDI's March 2006 MODFLOW model, the City gave reasonable assurance that the drawdown predicted from pumping at 2.75 mgd from the UFAS and 0.18 mgd from the SAS for wetland augmentation will not interfere with existing legal users. The nearest existing legal users are located about one mile northwest and two miles east/southeast of the nearest proposed production well. The City’s MODFLOW modeling scenarios indicate that maximum drawdown in the SAS will be less than 0.5 feet and minimal (at most 2.2 feet) in the UFAS at the nearest active existing legal users. Obviously, drawdown would be much less at 0.5 to 0.75 mgd from the UFAS (with probably no wetland augmentation required). As indicated, the drawdown predicted by SDI's March 2006 MODFLOW model is not a certainty. Although not likely based on the more persuasive evidence, if actual drawdown approximates the drawdown predicted by the Tetratech model, there could be interference with existing legal users. (The Tetratech model predicts that the long-term average reduction in the water table of approximately 1.6 feet of drawdown near the center of the wellfield and drawdown of 0.4 feet to 0.5 feet extending out more than a mile from the proposed Area IV Wellfield.) There probably still would be no interference with existing legal users with pumping at 0.5 to 0.75 mgd from the UFAS (with probably no wetland augmentation required). In the event of that much actual drawdown and unanticipated interference from the City’s pumping, “Other Condition” 15 of the proposed permit requires that it be remedied. See Finding 36, supra. There is no reason to think such interference could not be remedied. Environmental Impacts from Drawdown Miami Corporation’s property in the vicinity of the proposed Area IV Wellfield is a mosaic of pine flatwoods uplands interspersed with wetlands. The wetlands are mostly cypress swamps, with some areas of hardwood swamp, marshes, and wet prairies. Miami Corporation's property is managed for timber and is also used for cattle grazing and hunting. Miami Corporation has constructed a network of roads and ditches on its property, but overall the wetlands are in good conditions. The areas east and west of the proposed Area IV Wellfield consist of cypress strands, which are connected wetlands. Compared to isolated wetland systems, connected wetlands are typically larger, deeper, and connected to waters of the state. They tend to have hardwood wetland species. Connected wetlands are less vulnerable to water level changes brought about by groundwater withdrawals because they tend to be larger systems and have a greater volume of water associated with them. They are able to withstand greater fluctuations in hydroperiods than isolated herbaceous wetland systems. Isolated wetland systems are landlocked systems. They tend to be smaller in size and shallower than connected wetland systems. Isolated systems tend to be more susceptible to changes in hydrology than larger connected systems. The upland plant communities present near the proposed Area IV Wellfield include pine flatwoods that have been altered by Miami Corporation's timber operations. There is a large area surrounding the Area IV Wellfield to the north that consists of forest regeneration after timbering. There was evidence of the presence of the following listed animal species at the site of the proposed Area IV Wellfield: wood storks, roseate spoonbills, ibis, bald eagles, Sherman fox squirrels, American alligator, sandhill cranes, wood storks, black bear, and indications of gopher tortoises. The habitat in the vicinity also supports a number of other listed species that were not observed. The following listed plants species were also observed during the environmental assessment and site visits: hooded pitcher plants, water sundew, pawpaw and yellow butterwort. Ms. Clark’s property adjoins a cut-over cypress swamp on the western side of her property, and there is also a small man-made fish pond in her backyard. Some clearing has taken place in the wetland system on the back portion of Ms. Clark’s property. What appears to be a fire break on Ms. Clark’s property encroaches upon the wetland system. The wetlands on Ms. Clark’s property have experienced some human activities such as trash dumping and clearing, which have resulted in a degradation of those systems. Some trees within the wetland systems on the back portion of Ms. Clark’s property have been logged. For the most part, the hydrology appears to be normal. However, some invasive species have encroached upon the system due to the clearing that has taken place. There was no evidence of listed plant or animal species present on Ms. Clark’s property. If drawdown is of the magnitude predicted by the SDI's March 2006 MODFLOW model, unacceptable environmental impacts from drawdown would not be anticipated. At 0.5 or 0.75 mgd, there clearly would not be any unacceptable environmental impacts. In addition, “Other Condition” 12 of the proposed permit requires the City to perform extensive environmental monitoring. The environmental monitoring plan proposed for the Area IV Wellfield provides reasonable assurance that changes to wetland hydrology and vegetation due to groundwater withdrawals will be detected before they become significant. “Other Condition” 12 of the proposed permit prohibits the City from pumping any water from the production wells until the monitoring network is in place. The baseline monitoring will give a clear indication of the existing conditions prior to the production wells coming on-line. Once the production wells are online, the City will continue the same procedures that they conducted prior to the production wells coming online. This will allow the City and the District to monitor the effects of pumping. The City’s proposed environmental monitoring plan is adequate to detect drawdown impacts and is consistent with environmental monitoring plans that have been developed for other wellfields throughout the State of Florida. Since the City has given reasonable assurance that there will not be environmental harm from drawdown, the proposed permit does not propose mitigation. If unanticipated harm is detected, “Other Condition” 24 of the proposed permit requires the City to implement an avoidance and minimization plan to rehydrate the wetlands and restore the water levels to normal levels and natural hydroperiods by augmenting the water in the affected wetlands with water pumped from SAS wells and piped to the affected wetlands. “Other Condition” 24 includes specific timeframes for implementing wetland rehydration in the event unanticipated impacts were to occur. In addition, the City could, on its own, change its pumping schedules. If an impacted wetland is near a particular well, the City could reduce or shut off water withdrawals from that well and thereby restore water levels in the wetland. Direct augmentation of wetlands has been used at other facilities such as those of Tampa Bay Water and Fort Orange. The direct augmentation at these other sites appears to be effective. Direct augmentation of wetlands has proven to be a feasible means of offsetting adverse changes in wetlands due to groundwater withdrawals, at least in some circumstances. There is a viable source of water that can be utilized to augment these wetland systems, namely a large canal south of the production wells. Based on the predicted drawdown, SDI estimated the quantity of water needed for implementation of the avoidance and minimization plan to be 0.18 mgd. The water quality in the canal is comparable to the water quality within any wetland systems that would be affected by drawdown. The City plans to have its augmentation plan in place prior to the production wells coming online. In that way, if changes are observed within the wetland systems, the augmentation plan could be implemented in relatively short order to alleviate any impacts that might be occurring as a result of the production wells. The success of the augmentation plan depends on the extent of actual drawdown. If actual drawdown approximates Tetratech's predictions, environmental impacts would not be acceptable, and there would not be reasonable assurance that the augmentation plan would be sufficient to mitigate the environmental impacts. If drawdown is of the magnitude simulated in the City’s MODFLOW model, reasonable assurance was given that, if needed, the avoidance and minimization plan developed for the Area IV Wellfield would be capable of offsetting any adverse changes in wetlands and other waters detected through the environmental monitoring plan. If the City pumps not more than 0.75 mgd, the avoidance and minimization plan developed for the Area IV Wellfield probably would be unnecessary but certainly would be capable of offsetting any adverse changes in wetlands and other waters that would be detected through the environmental monitoring plan. If unanticipated environmental harm occurs due to excessive actual drawdowns, and the harm cannot be avoided either by the augmentation plan or by altering the pumping schedule, or both, the District can revoke all or part of the permit allocation under “Other Condition” 23. This ability gives reasonable assurance that no unacceptable environmental harm will occur even if actual drawdown approximates Tetratech's predictions. Saltwater Up-coning and Intrusion Predicting saltwater movement towards the production zone of the proposed Area IV Wellfield is important to several permitting criteria, including interference with existing legal uses and the ability of the resource to provide the requested allocation of freshwater, both of which relate to the public interest. During the permit application review process, the City submitted a succession of models to provide reasonable assurance that the proposed Area IV Wellfield would not result in unacceptable saltwater intrusion. Initially, BFA prepared and submitted solute transport simulations using an analytical model known as the “UPCONE Model.” The District initially accepted the submission as providing reasonable assurance to support the District's initial TSR. Despite Miami Corporation's petition, the City and the District maintained that reasonable assurance had been given that operation of Area IV would not result in unacceptable saltwater intrusion based on the "UPCONE Model." As indicated, supra, Miami Corporation's petition was scheduled for a final hearing in June 2005, but the hearing was continued until February 2006. As the case proceeded towards a final hearing in February 2006, the City not only turned to SDI to develop the numerical MODFLOW model, it also turned to SDI to develop a numerical solute transport model that would couple the MODFLOW groundwater flow equations with advection dispersion solute transport equations to simulate the movement of variable density saline groundwater in response to stresses. In addition to the initial boundary conditions, aquifer parameters and stresses specified for a groundwater model, a solute transport model requires solute parameters such as chloride concentrations, dispersivity and effective porosity. SEAWAT is a solute transport model code that combines the MODFLOW, which provides the groundwater flow component, with the MT3DMS code, which provides the mass transport component. When coupled with MODFLOW, the MT3DMS code tracks the movement of variable density water and performs internal adjustments to heads in the flow model to account for water density. Like MODFLOW, SEAWAT is capable of simulating the important aspects of the groundwater flow system, including evapotranpiration, recharge, pumping and groundwater flow. It also can be used to perform both steady-state or transient simulations of density- dependent flow and transport in a saturated zone. It was developed in the late 1990s and is rapidly becoming the standard for solute transport modeling throughout the United States. It is used by many water management agencies in the State of Florida. Initially, SDI used SEAWAT version 2.1 to simulate movement of saline water towards the Area IV Wellfield. The first such simulation was prepared in March 2006 using manually- adjusted head values along the eastern model boundary. It incorporated SDI's March 2006 MODFLOW model. The District, in consultation with Dr. Huyakorn, required SDI to perform what was termed a "sensitivity run" with reduced chloride concentrations in the eastern boundaries (5,000 mg/l versus 19,000 mg/l) to better match actual measurements recorded in wells in the vicinity. In April 2006 SDI prepared and submitted those simulations. After reviewing the March and April 2006 SEAWAT 2.1 simulations, Petitioners' consultants criticized the manner in which starting chloride concentrations in the vicinity of the Area IV Wellfield were input into the models. In those models, SDI had input initial chloride concentration at 50 mg/l throughout the depth of the UFAS. The model was then run for 100 years with no pumping to supposedly arrive at a reasonable starting chloride concentration for the UFAS. Then, the model was run for 25 years with pumping at 2.75 mgd. However, the initial chloride concentrations at the beginning of the pumping run still did not comport well with actual measurements that were available. After Petitioners raised the issue of the starting chloride concentrations assigned to the UFAS in SDI's March and April 2006 SEAWAT 2.1 runs, the final hearing was continued until September 2006 to give Petitioners time to complete discovery on those models (as well as on SDI's March 2006 MODFLOW model, as discussed supra). During a deposition of Dr. Huyakorn in July 2006, he recommended that the District require SDI to perform another simulation (also termed a "sensitivity run") using starting chloride concentrations more closely comporting with known measurements. (There also were some changes in the constant chloride concentrations that were part of the boundary conditions on the western side of the model domain.) This resulted in SDI's early August 2006 SEAWAT 2.1 simulation of 15 years of pumping at 2.75 mgd. Petitioners also criticized the City for not using a newer version of SEAWAT, called SEAWAT 2000, as well as for using chloride concentrations as inputs for its SEAWAT 2.1 model simulations instead of total dissolved solids (TDS). (SEAWAT 2.1 required input of TDS, not chlorides; SEAWAT 2000 allowed chlorides to be input. Not until the last day of the final hearing was it pointed out by Dr. Huyakorn that using chlorides instead of TDS caused SDI's SEAWAT 2.1 simulations to over- predict saltwater intrusion.) As a result of Petitioners' criticisms, the City had SDI re-run both the April and early August SEAWAT 2.1 models in late August 2006 using SEAWAT 2000 (which the City and the District also termed "sensitivity runs.") Because the SEAWAT 2000 simulations would be time- barred from use in the City's case-in-chief under pre-hearing requirements, and whether they could be used in rebuttal could not be determined at that point in time, the City requested another continuance, this time until December 2006, to give Petitioners time to discover the SEAWAT 2000 model simulations. During Petitioners' discovery of SDI's August SEAWAT 2000 model simulations, it came to SDI's attention that SDI was not calculating mass outputs from the model correctly. Those errors were corrected by SDI in September 2006. SDI's corrected August 2006 SEAWAT 2000 simulation predicted that, after 15 years of pumping at 2.75 mgd, the chloride concentration in the Area IV production wells would increase from 54 mg/l to 227 mg/l. After the 15-year pumping run, SDI's corrected August 2006 SEAWAT 2000 simulation predicted that the chloride concentration in several of the southernmost production wells would exceed 250 mg/l. At 17.5 years of the pumping run simulation, the simulation predicted that the entire wellfield would have chlorides in excess of 250 mg/l. That prediction does not, however, mean the chloride concentration in these wells will exceed 250 mg/l in actual operation. The SDI model contains several conservative assumptions that magnified the potential chloride concentrations in those wells. First, it was assumed all the production wells would be drilled to 250 feet below land surface, while the City will likely drill the southernmost wells to a shallower depth. Additionally, the wellfield production rate used in the model was not optimized for water quality. Finally, the model was not set up to simulate a wellfield operation plan that turned wells on and off based on the saline water monitoring plan. For the sake of simplicity, the model assumed that all the wells would operate 24 hours a day, 7 days a week, for the entire 15 year period. Petitioners continued to maintain for several reasons that SDI's SEAWAT models do not provide reasonable assurance that operation of the Area IV Wellfield will not result in unacceptable saltwater intrusion. Chlorides versus TDS Petitioners criticized SDI's corrected SEAWAT 2000 model for still not inputting chlorides correctly. While SEAWAT 2000 allows the input of chlorides instead of TDS (and input of chlorides instead of TDS is recommended since chloride is a more stable chemical than some of the other components of TDS), they must be input correctly. However, while Petitioners demonstrated that the chlorides were not input correctly, causing the model to under-calculate fluid density, Dr. Huyakorn clarified in rebuttal that under-calculating fluid density caused SDI's SEAWAT 2000 models to over-predict saltwater intrusion into the wellfield. Starting Chloride Conditions Petitioners continued to question the representation of initial chloride concentrations in the SEAWAT models. SDI's SEAWAT models included multiple vertical grid layers to represent conditions better than the layering used in the MODFLOW set-up. The SAS was represented by layer 1, the ICU by layer 2, the UFAS by layers 3 through 14, the MCU by layer 15, and the LFAS by layers 16 and 17. SDI used a chloride concentration of 0 mg/l for the SAS and ICU in its August 2006 SEAWAT model, which probably does not represent the actual initial condition but is probably close enough since the SAS is recharged by rainfall that typically has very low (1 to 2 mg/l) chloride levels. SDI used a chloride concentration of 2,500 mg/l for the MCU and a chloride concentration of 5,000 mg/l for the LFAS in its August 2006 SEAWAT model, which are reasonable initial chloride values for the Area IV Wellfield. To develop the initial chloride concentration conditions of the UFAS for its August 2006 SEAWAT model, SDI first plotted the available water quality data (63 well-data points) on a map of the Area IV Wellfield area. After examining the distribution of the data, SDI divided the UFAS into two layers to represent the upper UFAS (above –200 feet NGVD) and the lower UFAS (below –200 feet NGVD). Then, using various scientific studies containing chloride concentration maps, groundwater recharge/discharge maps (recharge indicating an area is more likely to have low chlorides in the UFAS and discharge indicating an area is more likely to have high chlorides), and maps showing the shape and extent of the freshwater lens in the area, plus SDI’s own knowledge of groundwater flows and expected higher chloride concentrations along the coast and St. Johns River, SDI used scientifically accepted hand-contouring techniques to represent the initial chloride concentration conditions of the upper and lower UFAS on maps. SDI’s two hand- contoured chloride concentration maps were reviewed and accepted by the District’s experts and reflect a reasonable representation of the initial chloride concentration conditions in the UFAS in the Area IV Wellfield. Using the two hand- contoured chloride concentration maps, SDI input the chloride concentration values from those maps into its August 2006 SEAWAT model. The chloride concentration values from the upper UFAS map were input into layers 3 through 7 of SDI’s August 2006 SEAWAT model. The chloride concentration values from the lower UFAS map were input into layers 11 through 14 of SDI’s August 2006 SEAWAT model. SDI input the average of the chloride concentration values from the upper and lower UFAS layers into the middle UFAS (layers 8 through 10). It is appropriate to average the chloride values between the upper and lower UFAS in the Area IV Wellfield because the saline water interface is not that sharp and occurs near the bottom of the UFAS (unlike conditions 11 miles to the south). Petitioners accuse SDI, the City, and the District of ignoring unfavorable chloride data in setting up its August 2006 SEAWAT 2000 model. The evidence was that all chloride data was considered and evaluated. Mr. Davis and the District's experts did not rely on the 450 mg/l chloride packer test measurement taken from the interval between 270 and 295 feet at Test Site 3 in preparing the contour maps of the UFAS because the chloride measurement was deemed inaccurate because the sodium to chloride ratio is out of balance. Mr. Davis and the District's experts did not utilize the 2,336 mg/l and 2,717 mg/l chloride concentration packer test measurements at 442-500 feet below land surface at Test Sites 1 and 3 to prepare the chloride contour maps for the UFAS because they believed these measurements from the MCU. Mr. Davis and the District's experts deemed it inappropriate to utilize a 845 mg/l chloride value reported for Test Site 2 to prepare the chloride contour for the lower portion of the UFAS because this sample was collected at just 210 feet below land surface and because a 500 mg/l contour line separates a 882 mg/l measurement at Test Site 1 from a 134 mg/l measurement at Test Site 3. The decision not to include the Test Site 2 data also is supported by the particle tracking modeling prepared by the Petitioners and the City using the groundwater component of the SDI SEAWAT model and the TetraTech model, which show that water from Test Site 2 will not enter the Area IV production wells for at least 100 years with pumping at 2.75 mgd. The chloride contour maps developed by Mr. Davis and the District experts were consistent with previous studies conducted by the USGS and the District in the region. For example, the chloride contours shown on City Exhibit 142 for the upper portion of the UFAS are generally consistent with Figure 35 of the 1990 USGS Report by Charles Tibbals and Figure 15 of the 1999 District Report by Toth and Boniol. The two chloride contour maps developed by Mr. Davis and the District's experts are a reasonable representation of the existing water quality of the UFAS in the region of the Area IV Wellfield based on the available data. Mr. Davis used the 882 mg/l chloride concentration packer test measurement from the interval between 331 and 400 feet at Test Site 1 as the starting chloride concentration in four grid cells at the bottom of the UFAS, which Petitioners' experts referred to as a "pinnacle" or "column," that were assigned a chloride value of 700 mg/l. While the representation may not have been realistic, and the "pinnacle" or "column" quickly "collapses" when the model begins to run, the representation was a concession to the existence of the datum even though it appeared at odds with water quality collected from a packer test at Test Site 3 at the same depth interval, which was much fresher. District staff agreed with Davis’ approach to representing the saltier packer test measurement from Test Site 1. The initial chloride concentrations developed for the UFAS by Mr. Davis and District staff are not inconsistent with the water quality data collected by the Petitioners’ consultants from Long Lake. The lake is located in an area of the map where the chloride concentration in the UFAS, which discharges into the lake at that location, is between 1,000 and 5,000 mg/l. Mr. Davis decided not to use 2,000 mg/l to represent the bottom layer of the UFAS even though the bottom packer tests performed at Test Sites 1 and 3 showed an average value of 2,000 mg/l at the approximate boundary of the UFAS and the MCU. Instead, he decided to associate this chloride concentration with the MCU because even if the packer had penetrated a portion of the UFAS, he did not believe the measurement was representative of static water quality conditions at that depth. The packers had been pumped for over 4 hours at 25 gpm at Test Site 1 and over 4 hours at 85 gpm at Test Site 3, which could have doubled or tripled the static chloride concentration. As was later shown in sensitivity runs by Petitioners' expert, Dr. Guo, if SDI had incorporated the 2,000 mg/l value at the bottom of the UFAS, the model simulation would have shown unrealistically high initial chloride concentrations in the production wells at the start of pumpage when compared to the water quality measured during the APTs conducted at Test Sites 1 and 3. (While only one well was pumping at a time, versus the 15 in the model simulations, the single APT well was pumping at approximately three times the rate of the 15 wells in the model simulation.) Based on all the evidence, it is found that the chloride concentrations used in SDI’s August 2006 SEAWAT model reflect a reasonable representation of the initial chloride concentration conditions in the UFAS in the Area IV Wellfield and were properly input into that model using an appropriate method. Location of the MCU Related to the last point is Petitioners' claim that the top of the MCU (i.e., bottom of the UFAS) is incorrectly represented in SDI's SEAWAT models at 450 feet below sea level (approximately 425 feet below land surface). They point to literature values indicating that the depth to the MCU is up to 150 feet greater. However, these reports did not include site- specific data or test wells in the vicinity of the Area IV Wellfield or in northern Brevard County. It was reasonable to consider and rely on site-specific information regarding the depth to the MCU in this case. BFA determined the approximate location of the MCU by examining cuttings collected during drilling at APT well sites 1 and 3 and by measuring various properties of the aquifer with down-hole geophysical techniques. Based on the site-specific information obtained, the depth to the MCU was determined to be approximately 450 to 475 feet below land surface or –425 to -450 feet NGVD. The lithologic log for well site 1 indicates the presence of gray/tan limestone between 450 to 460 feet below land surface and light/gray limestone and dolomitic limestone from 460 to 470 below land surface. The lithologic log for well site 3 indicates the presence of tan dolomitic limestone from 450 to 460 feet below land surface and tan limestone and dolomitic limestone from 460 to 470 feet below land surface. According to Petitioners' own expert, Dr. Missimer, the change to a mixture of limestone and dolomite is evidence of the MCU. After examining the video log for well site 1, Dr. Missimer noted a “lithologic change” at 477 feet below land surface (while still disputing BFA's conclusion that the MCU started there.) One characteristic of the MCU is a lower resistivity. At well site 1, a reduction in resistance occurred at approximately 470 feet below land surface. Another characteristic of penetrating the MCU is decrease in flow. The flow meter log for well site 1 suggests a decrease in flow at approximately 450 feet below land surface. On the other hand, it also is true that wells drilled completely into the MCU probably would not produce more than approximately 5 gallons per minute (gpm), whereas the packer test at the bottom of Wellsite 1 was yielding 25 gpm, and the packer test at the bottom of Wellsite 3 was producing 85 gpm. It is possible that the bottom packers were open to both the UFAS and the MCU, which could explain the higher flows. Petitioners maintain that BFA stopped drilling too soon (500 feet below land surface, or 475 feet below sea level) to ascertain the actual depth to the MCU. While it is true that drilling deeper would have made BFA's determination as to the depth to the MCU more convincing and certain, BFA's approximation of the depth to the MCU was reasonable for purposes of SDI's SEAWAT model. To the extent that BFA might have been wrong on the depth to the MCU, there was no convincing evidence that the error would have made SDI's SEAWAT model results unreliable. To the contrary, Dr. Huyakorn testified that, even if SDI put the MCU 75 feet too high, the label given to the interval is not critical to the reliability of the modeling results. More important are the parameters for transmissivity and leakance assigned to aquifers and confining units. Dr. Huyakorn testified that, given the aquifer parameters assigned to the intervals, SDI's SEAWAT modeling results would be reasonably reliable. Saline Movement Impacts As indicated, once chloride concentration changes are predicted with reasonable assurance, both interference with existing legal uses and the ability of the resource to provide the requested allocation of freshwater, which relate to public interest, must be evaluated. Significant saline water intrusion is defined as saline water encroachment which detrimentally affects the applicant or other existing legal users of water, or is otherwise detrimental to the public. (Rule 9.4.2, A.H.). Saline water may encroach from upconing or the vertical movement of saline water into a pumping well, and it may encroach laterally to the well from a saline waterbody like the ocean. The proposed use associated with the four surficial aquifer extraction wells is so minimal that it clearly would not cause saline water intrusion or harm the quality of this proposed source of water. The focus of attention is the production wells. The evidence was sufficient to provide reasonable assurance that the proposed consumptive use from the Area IV Wellfield will not cause significant saline water intrusion; further aggravate currently existing saline water intrusion problems; induce significant saline water intrusion to such an extent as to be inconsistent with the public interest; or harm the quality of the proposed source of water. First, the long-term constant rate pump tests, which were conducted as part of the APT, give some indication of the potential for saltwater intrusion. While only one well was pumping during the tests, water quality did not degrade at pumping rates that far exceeded what would be approved as part of the proposed permit. During four-day pump tests in which the wells at sites 1 and 3 were pumped at approximately 1 mgd, chlorides never exceeded approximately 74 mg/l. Second, while (as with drawdown predicted by the groundwater flow modeling) saltwater movement predicted by the City’s SEAWAT simulations is not a certainty, the simulations gave reasonable assurance that the requested allocation could be withdrawn from the Area IV Wellfield without excessive changes to water quality (specifically chlorides) and that there is an adequate thickness of freshwater at the Area IV Wellfield that could supply the requested allocations of water for 15 years without saline water intrusion, especially since it is unlikely that a number of the wells will actually be constructed to the 250-foot depth assumed in the model, particularly as one moves south along the railroad right-of way. Third, it is even more unlikely that saltwater intrusion will occur before the proposed permit expiration in 2010. Due to the time required to construct the facility, it is anticipated that the Area IV Wellfield will become operational in 2009. Assuming the City seeks to renew the permit, there would be more information on saltwater intrusion for the District to consider on permit renewal. Since the City provided reasonable assurance as to its proposed withdrawals from Area IV, there clearly is reasonable assurance that withdrawal of not more than 0.75 mgd from Area IV would not result in significant saline intrusion. The TSR includes proposed “Other Condition” 11 which requires the installation of saline monitor wells. The spatial distribution of these wells is such that the beginning of water quality degradation or saltwater intrusion, either from upconing or lateral intrusion, would not occur without it being detected by these wells. In addition to these monitor wells, proposed “Other Condition” 14 requires water quality samples to be collected from each production well. These wells are to be sampled quarterly for a suite of parameters, including chlorides. “Other Condition” 25 is proposed as a “safety net” should unanticipated saltwater intrusion occur. If any production well shows a concentration of 250 mg/l chlorides, then this proposed condition would prohibit further use of the well until the chloride concentration drops. If the monitoring shows a chloride concentration in a production well of 200-to- 249 mg/l, the well will be placed on restricted use. A production well may be placed back into regular service once the chloride concentration in the well is below 200 mg/l. Other Issues Other issues raised and maintained by Petitioners in this case include: whether the City has provided reasonable assurance that it owns or controls the property upon which the proposed wellfield will be located; whether the Area IV Wellfield is an economically feasible option; whether the City has provided reasonable assurance that it will be able to implement the project before the expiration date of the proposed permit; whether the proposed CUP is inconsistent with the District's designation of Priority Water Resource Caution Areas; whether the proposed CUP constitutes an impermissible modification of the existing CUPs for Areas II and III; and whether the City failed to pay the appropriate permit fee. Ownership or Control The City has obtained an easement from the Florida East Coast Railway (FEC) to use FEC right-of-way for the City's proposed production wells. It does not yet have ownership or control of land needed for all wetland and saline monitoring sites, or for wetland augmentation if necessary, but intends to acquire the right to use all land needed through negotiation or exercise of eminent domain. Petitioners contend that the FEC easement is insufficient for several reasons: the easement is "without warranty or covenants of title of any kind"; it is impossible to define the precise boundaries of the easement because the easement is defined in terms of distance from the center of a railroad bed that existed in 1866 but no longer exists; and the precise location of proposed production wells is not definite. While the easement is "without warranty or covenants of title of any kind," the evidence is that, if contested, the precise boundaries of the easement would be difficult but not necessarily impossible to define. It is reasonable to anticipate that at least Miami Corporation will contest the legality and extent of the FEC easement. Petitioners allege that there is confusion about the location of the proposed wells because some well locations identified in the City’s permit application did not match the coordinates assigned to certain production wells on the District’s on-line database. Actually, there is no confusion regarding the location of the wells; the well locations identified in the permit application were the well sites used for modeling purposes and for review of the application. District staff explained that the well site locations identified in the District’s database would be finalized after the wells are constructed and the exact locations have been identified using GPS technology. Contrary to Petitioners' contentions, the District’s rules do not require that an applicant own the property where the proposed production wells or monitoring wells are to be located. The District has issued many CUPs where either the subject property or the property associated with the monitoring requirements of the permit are not owned by the applicant. Recent examples include the CUPs for Orange County Utilities and the Orlando Utilities Commission. This makes sense when the applicant has the power of eminent domain or some other credible means of obtaining necessary ownership or control, such as an option contract. The District’s permit application form has a section that requires the applicant to identify who owns or controls the land on which the facility will be located. The District uses this information for noticing and contact information. Contrary to Petitioners' contentions, this section of the permit application form is not intended to create a substantive permitting standard requiring property ownership before a consumptive use permit can be issued. Petitioners argue that proof of ownership or control is necessary to determine whether a drawdown from a proposed water use will adversely affect stages or vegetation on lands other than those owned, leased, or otherwise controlled by the applicant. However, the evidence was that these impacts can be assessed based on the facts of this case. The City's need to eventually obtain ownership or legal control to exercise the rights granted by the proposed CUP may be problematic in this case and is a factor to be considered in the next two issues raised and maintained by Petitioners: whether the Area IV Wellfield is an economically feasible option; and whether the City has provided reasonable assurances that its project can become operational before the expiration date of the proposed permit. But it is not a reason to automatically deny the City's proposed CUP. Economic Feasibility Petitioners argue that the proposed Area IV Wellfield is too expensive and that the expense should be a factor in deciding whether it is in the public interest. But cost to the City is not a factor in determining whether to issue the CUP proposed in this case. Statutes and rules cited by Petitioners on this point do not apply to this CUP determination. See Conclusions of Law 277-279, infra. Implementation Before Expiration Date Litigation of a case filed by Miami Corporation to contest the legality and extent of the City's FEC easement will add to the (cost and) time necessary to implement the project. This additional time was not specifically taken into account by the City in estimating the time it would take to implement the project. The (cost and) time for litigation of the legality and extent of the City's FEC easement could be spared by exercising eminent domain instead. That probably would add to total the cost of eminent domain but might not add appreciably to the time necessary for acquisition of required ownership or control. In an imprecise way, the time for eminent domain proceedings necessary to gain ownership or control of land for monitoring sites and wetland augmentation (without time for litigation of a contest over the legality and extent of the FEC easement, or for using eminent domain instead) was factored into the time estimated for implementation of the project. With this rough estimate, the evidence was that the project could be expedited and completed in 33 months from issuance of a CUP. It is possible but not probable that the project could be implemented in less than 33 months. It is possible and more probable that it will take longer than 33 months to implement the project. In a worst case scenario, it could take as much as 59 months complete the project. But 33 months is a reasonable, if optimistic, estimate (without time for litigation of the legality and extent of the FEC easement, or for using eminent domain instead). As found, the proposed CUP expires at the end of 2010. Given the 33-month estimate for implementation (without time for litigation of a contest over the legality and extent of the FEC easement), the CUP would have to be issued by March 2008 to be completed before expiration. Given that estimate, it would be in operation for six months before expiration. It is likely that the City will apply to renew both the existing CUP for Areas II and III and the proposed CUP for Area IV. It appears from Petitioners' Response to the other PROs that one purpose for their arguments that the proposed CUP for Area IV cannot be implemented before its expiration is to buttress their arguments, already addressed, that there is no need for the proposed CUP for Area IV. Priority Water Resource Caution Area Designation As part of its water supply planning process, the District designates priority water resource caution areas. A priority water resource caution area is an area where existing and reasonably anticipated sources of water and water conservation efforts may not be adequate to supply water for all existing legal uses and anticipated future needs and to sustain the water resources and related natural systems. The area surrounding the Area IV Wellfield was designated as a priority water resource caution area in the District’s 2003 Water Supply Assessment and 2005 Water Supply Plan based on groundwater modeling prepared by District planning staffing using the ECF and Volusia County Regional Models. The fact the Area IV Wellfield is located in a priority water use caution area does not mean a consumptive use permit cannot be issued for this facility. In fact, over one- third of the District is located within a priority water resource caution area, and permits continue to be issued in those areas. Rather, the essence of the designation is the recognition of a concern, based on the regional models, that the proposed consumptive use of water might violate the wetland and lake constraints and that water resources other than fresh groundwater will be needed to supply the expected need for water in the area and in the District over the next 20 years. That does not mean that no additional groundwater withdrawals should be permitted in a designated area. Rather, it means that other resources should be developed and used along with whatever remaining additional fresh groundwater can be permitted. It is not an independent reason, apart from the permitting criteria, to deny the City's application. Impermissible Modification of Existing CUP Petitioners contend that the proposed CUP for Area IV includes an impermissible modification of the existing CUP for Areas II and III because “Other Condition” 5 limits average annual withdrawals from the Area II, III, and IV Wellfields, combined, to 5.79 mgd in 2009 and 6.01 mgd in 2010. (As indicated, the limitations would have to be reduced to no more than 5.2 mgd based on the more reasonable projected need.) However, the City’s current CUP for the Area II and III Wellfields expires in February 2008, which is before the Area IV Wellfield would become operational, so that "Other Condition" 5 will have no practical effect on the existing CUP for Areas II and III. In essence, "Other Condition" 5 serves to advise the City that it should not view the allocation for the Area IV Wellfield in addition to the City’s existing allocations for the Area II and Area III Wellfields and that any renewal of the existing CUP for Areas II and III will have to take the Area IV allocation into account. Appropriate Permit Fee Petitioners have alleged that the City has not paid the correct permit processing fee. In March 2001, the City paid the District $200 when it submitted its initial permit application to modify its existing CUP. In May 2005, the City paid the District an additional $800 when it amended its application and withdrew its request to modify its existing permit. All required permit processing fees have been paid for this CUP application 99052. Miscellaneous As to other issues raised by Petitioners in the case, the evidence did not suggest any danger of flooding, any proposed use of water reserved by rule for other uses, any effect on any established minimum flows or levels, or inadequate notice. Standing As found, Miami Corporation owns property immediately adjacent to the proposed Area IV Wellfield, and Ms. Clark owns property a little more than a mile away. Both alleged and attempted to prove that SAS drawdown from the proposed CUP would degrade wetlands on their property and interfere with their legal use of groundwater, and that saline intrusion from the proposed CUP would degrade the water quality of the UFAS resource which they use for potable water. As found, Petitioners did not prove those allegations; however, the evidence was that both Petitioners have substantial interests (the quality of water in the aquifer from which their wells withdraw water and wetlands on their property) that would be affected by the proposed CUP at least to some extent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the District issue the City a CUP for Area IV as provided in the second revised TSR, except for a lower water allocation at this time, namely: 0.75 mgd on an annual average basis, with appropriately lower allocations on the other bases in the TSR, and with a combined annual average rate for Areas II, III, and IV in "Other Condition" 5 of 5.2 mgd for 2009 and 2010 instead of 5.79 mgd in 2009 and 2010, and appropriately lower combined maximum daily rates for Areas II, III, and IV in "Other Condition" 9. Jurisdiction is reserved to hear and rule on the pending motions for sanctions if renewed no later than 30 days after entry of the final order in this case. DONE AND ENTERED this 31st day of July, 2007, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 2007.
The Issue The issue is whether Respondent Department of Environmental Protection may issue to Respondent Tampa Bay Water a variance from the requirements, in Rules 62-555.520(4)(c) and (d), Florida Administrative Code, that an application for a permit to construct and operate a drinking water system contain drawings of the project with sufficient detail to describe clearly the work to be undertaken and complete specifications of the project to supplement the drawings.
Findings Of Fact Inception of Tampa Bay Water, Consolidated Permit, and Other Documentation for the Production of Drinking Water Respondent Tampa Bay Water (TBW) is a wholesale public water supply utility. TBW is governed by a nine-member board of directors with one member each from the municipalities of Tampa, St. Petersburg, and New Port Richey and two members each from the counties of Hillsborough, Pinellas, and Pasco. The purpose of TBW is to use group resources to find regional solutions to the problems of water supply in the region. Over two million persons in the three-county area rely on TBW for their drinking water. The predecessor of TBW was the West Coast Regional Water Supply Authority (WCRWSA), which was created in 1974. The West Coast Regional Water Supply Authority was also a wholesale public water supply authority. However, the authority operated as a cooperative entity, and TBW operates as a regulatory entity. In 1996, WCRWSA sought to renew its permit from Intervenor Southwest Florida Water Management District (SWFWMD) to allow continued withdrawals from four of its eleven major wellfields. Concerned with the environmental impacts, such as drawdowns of the water levels of wetlands, streams, and lakes, from the environmental, if not regulatory, overpumping of the wellfields, SWFWMD denied the application for the quantities requested. An Administrative Law Judge at the Division of Administrative Hearings conducted a hearing and issued a recommended order finding adverse environmental effects from overpumping, but recommending that SWFWMD issue the requested permits subject to certain conditions. Subsequent negotiations resulted in the parties' entering into a series of agreements covering withdrawals from the four wellfields that had been the subject of the administrative hearing and seven more wellfields that were approaching repermitting (11 Wellfields), as well as a series of other matters. On May 20, 1998, WCRWSA, the three member counties, the three member municipalities, and SWFWMD entered into the Northern Tampa Bay New Water Supply and Ground Water Withdrawal Reduction Agreement (Partnership Agreement). The Partnership Agreement requires WCRWSA to bring one or more projects online, by December 31, 2002, to produce at least 38 million gallons per day (MGD) and, by December 31, 2007, to produce at least 85 MGD of new water supply. The Partnership Agreement requires SWFWMD to provide WCRWSA with $183 million toward eligible water supply projects. The Partnership Agreement notes that the then-current Master Water Plan of WCRWSA recognizes that "an aggressive conservation and demand management program is an integral component of a sustainable water supply." (Joint Exhibit 3, p. 31.) The Partnership Agreement notes that the then-current Master Water Plan states that the conservation program was expected to reduce use by 10 MGD per day by 2000 and 17 MGD by 2005. From the effective date of the agreement through December 31, 2002, the Partnership Agreement requires a reduction in pumping of the 11 Wellfields to 158 MGD, based on a rolling 36-month average. For the next five years, the Partnership Agreement requires a reduction in pumping of the 11 Wellfields to 121 MGD, based on an annual average. After that, effective December 31, 2007, the Partnership Agreement requires a reduction in pumping of the 11 Wellfields to 90 MGD, also based on an annual average. Three weeks after the execution of the Partnership Agreement, WCRWSA was reorganized into TBW in June 1998 through the execution of two documents: an Amended and Restated Interlocal Agreement dated June 10, 1998 (Interlocal Agreement), and a Master Water Supply Contract dated June 10, 1998. TBW assumed WCRWSA's rights and responsibilities under the Partnership Agreement. The Interlocal Agreement empowers TBW to produce and supply drinking water "in such manner as will give priority to reducing adverse environmental effects of excessive or improper withdrawals of Water from concentrated areas." (Joint Exhibit 1, pp. 20-21.) The Interlocal Agreement incorporates the phased-in reductions in withdrawals from the 11 Wellfields that are set forth in the Partnership Agreement. The Interlocal Agreement notes that, if the Partnership Agreement provides for extensions of the deadlines, the deadlines contained in the Interlocal Agreement shall likewise be subject to extension. Applying to the 11 Wellfields, SWFWMD issued TBW a Consolidated Permit, which was issued on December 15, 1998, and became effective on January 1, 1999. Complementing the Partnership Agreement, which reflects SWFWMD's resource- development role, is the Consolidated Permit, which reflects SWFWMD's regulatory role. The Consolidated Permit incorporates the phased-in reductions of withdrawals, as set forth above, for the 11 Wellfields. Although the deadlines for phased-in reductions are conditioned on the funding to be provided by SWFWMD, pursuant to the Partnership Agreement, these deadlines are otherwise unconditional and firm. The Consolidated Permit expressly provides for extensions of deadlines, except the deadlines set for the phased-in reductions of withdrawals from the 11 Wellfields. The Consolidated Permit imposes upon TBW extensive responsibilities regarding environmental monitoring, reporting, and mitigation. These responsibilities extend to groundwater, wetlands, and surface waters, as TBW must, among other things, monitor and report levels in the surficial and Floridan aquifers and potentiometric surfaces in the Floridan aquifer in the vicinity of the 11 Wellfields, as well as in the vicinity of selected wetlands and surface waters. The Consolidated Permit sets specific "regulatory levels" for these resources. Present and Future Tampa Bay Water Facilities, Including the Surface Water Treatment Plant A majority of TBW's production facilities consists of the 11 Wellfields. In an effort to supplement these production sources so as to comply with the phased-in reduction deadlines set forth in the Consolidated Permit and other documents, TBW annually adopts a New Water Plan, which describes capital planning for drinking water production facilities. The June 2000 New Water Plan summarizes the requirements of the Partnership Agreement. The June 2000 New Water Plan notes that TBW reaffirmed its Master Water Plan and New Water Plan projects in April 2000. These projects include the Enhanced Surface Water System, which includes the Tampa Bay Regional Surface Water Treatment Plant (SWTP), Tampa Bay Reservoir Project (Reservoir), and projects obtaining water from the Alafia River, Hillsborough River, and Tampa Bypass Canal. Other projects, besides the Enhanced Surface Water System, include Seawater Desalination (Desal Plant). The June 2000 New Water Plan states that the Enhanced Surface Water System is eligible for a maximum of $120 million from SWFWMD, pursuant to its funding obligation under the Partnership Agreement. This case involves the means by which the SWTP will be permitted, and, in consideration of the manner of permitting, this case involves the means by which the SWTP will be designed and constructed. The June 2000 New Water Plan notes that TBW and USFilter Operating Services, Inc. (USFilter) have entered into a contract for the latter to design, build, and operate (DBO) the SWTP (DBO Contract). The June 2000 New Water Plan reports that USFilter is currently constructing an access road to the site. Among current issues, the June 2000 New Water Plan describes this case, noting that TBW obtained a variance from Respondent Department of Environmental Protection (DEP) allowing a design, build (DB) approach to permitting the SWTP. The June 2000 Water Plan states that the present challenge "has the potential to delay the completion of the [SWTP] by an estimated 8 months, subsequently delaying delivery of the initial 22 mgd (dry weather conditions) of new surface water to the regional system until May 2003 and more likely final acceptance of the [SWTP] to September 2003." (Joint Exhibit 5, p. 4.) (The accuracy of this statement is open to debate because SWFWMD granted an environmental resource permit for the SWTP project only on June 27, 2000--before which no significant alteration of the land could have taken place.) In the meantime, the June 2000 New Water Plan predicts a water supply shortfall of 100,000 to 2 million gallons per day in the South-Central service area of Hillsborough County. Addressing the SWTP, the June 2000 New Water Plan states that TBW purchased the site in October 1999 and released a Request for Proposals on July 19, 1999. Four pre-qualified DBO teams responded on October 18, 1999. The June 2000 New Water Plan erroneously states that TBW applied for a public drinking water facility construction permit (Water Treatment Permit) in October 1999. Actually, in September or October, TBW prefiled with the Hillsborough County Health Department (Health Department) its application for a Water Treatment Permit and paid the $7500 filing fee. The purpose of this courtesy filing or prefiling was to allow Health Department representatives to examine the application, including drawings and specifications for the SWTP, and perhaps expedite the approval process, once TBW filed a formal application. The June 2000 New Water Plan reports that the SWTP will have a peak day, surface water treatment capacity of 60 MGD and will be located on a 433-acre site near U.S. Route 301 and Broadway Avenue in central Hillsborough County. The June 2000 New Water Plan states that the SWTP project schedule calls for completion of construction by March 2003 with plant startup and testing in May 2003 and final acceptance testing in September 2003. The June 2000 New Water Plan estimates that detailed design, site permitting, and construction of the SWTP will cost $84.3 million, and the annual operation and maintenance expenses will be $7.9 million. As for the Desal Plant, the June 2000 New Water Plan reports that TBW will pursue a design, build, own, operate, and transfer (DBOOT) approach to acquire a plant to produce, initially, 25 MGD and capable of expansion by an additional 10 MGD. The June 2000 New Water Plan states that this plant will cost a total of about $96 million in capital expenses and about $19 million annually to operate. Procurement of the Surface Water Treatment Plant Design, Build, Operate Contract and Basis of Design TBW issued a Request for Proposals (RFP) that invited base and alternative proposals for the SWTP. TBW hired Parsons Engineering Sciences to prepare a preliminary design of the SWTP, so as to assist in the preparation of the proposals; although offerors could use alternative designs to the Parsons base design, all proposals had to meet the performance standards specified in the RFP. After publishing the RFP in papers and technical journals and on the Internet, TBW was able to prequalify five teams of offerors. Four of the five prequalified offerors submitted proposals. TBW received a total of nine proposals because each offeror submitted a base proposal and one alternative proposal, and one offeror submitted a second alternative proposal. At its January board meeting, TBW selected the USFilter proposal. No party filed a bid protest to the specifications of the RFP or the selection of USFilter and its team. After the selection of USFilter, TBW entered into negotiations with USFilter. During this process, USFilter agreed, at its expense, to add sand to the granulated activated carbon filters to remove fine particles more efficiently, even though it cannot recover the resulting cost of $1.5 million before or after the commencement of operations. TBW and USFilter entered into the DBO Contract on April 10, 2000 (DBO Contract). The DBO Contract identifies "Design Requirements" that "are intended to include the basic design principles, concepts and requirements for the [c]onstruction . . but do not include the detailed design or indicate or describe each and every item required for full performance of the physical [c]onstruction . . .." (Joint Exhibit 23, Section 1.2.6.) The "Design Requirements" are Schedule 6 to the DBO Contract. Schedule 6 contains all of the individual, technical specifications for the SWTP. Schedule 6 occupies two of the four volumes of large, three-ringed binders forming the DBO Contract. The DBO Contract identifies USFilter, Clark, and Camp Dresser & McKee, Inc. (Camp Dresser) as the DBO team for the SWTP project. Camp Dresser is providing design services, Clark is performing the construction, and USFilter is providing the operation and maintenance services for at least 15 years, as well as the financial guarantee, through its corporate parent. The DBO Contract provides TBW with a fixed construction cost, fixed operating costs, and guaranteed finished water quality. Schedule 8 assures that finished water quality will meet all applicable state and federal drinking water quality standards. Two witnesses at the hearing testified that TBW exacted from USFilter assurances of water quality that, as to certain parameters, will exceed applicable state and federal drinking water quality standards. The DBO Contract provides TBW with a firm completion date, subject to design modifications requested by TBW and uncontrollable circumstances, such as acts of God, raw water whose quality exceeds the maximum limits, or the delay caused by this case. A key document in this case is the Basis of Design Report (Basis of Design), which was prepared by the DBO team in April 2000. Acknowledging the phased-in withdrawal limitations and potential for fines for not meeting the deadlines set forth in the Consolidated Permit, the Basis of Design describes the purpose of the DBO process as follows: By utilizing the [DBO] approach for the [SWTP], [TBW] expects to secure substantial benefits . . .[,] includ[ing] costs savings, innovative design, reduced risk of schedule and cost excesses, long-term contracted facility operations, and maintenance efficiencies and guaranties. (Joint Exhibit 8, pp. 1-2.) The Basis of Design reports that the SWTP will be located on a 100-acre parcel within a 435-acre tract that will also accommodate facilities for groundwater treatment and storage of the treated groundwater, treated surface water from the SWTP, and treated saline water from the Desal Plant. The Basis of Design identifies the sources of raw water for the SWTF as the Tampa Bypass Canal, Hillsborough River, and Alafia River. Once online, the reservoir will help normalize quantities of available raw water throughout the dry season. The Basis of Design describes the main treatment process as pretreatment, including pH adjustment with sulfuric acid or caustic soda, powdered activated car feed, and ferric sulfate coagulant addition; coagulation, flocculation, and sedimentation using a high-rate ballasted sedimentation process known by its tradename as ACTIFLO; ozonoation for primary disinfection, taste and odor control, and partial conversion of dissolved organic carbon to an assimilable or biodegradable form; biologically active filtration for turbidity reduction, taste and odor control; reduction of biodegradable organic carbon; and post-treatment, including secondary disinfection using chloramines. The finished water will then be pumped into tanks for storage and blending before release into the distribution facilities. Distinguishing the DB process from the typical design, bid, build (DBB) process, the Basis of Design states: a very significant amount of process studies and pre-engineering was performed by the Project Team in support of its [DBO p]roposal. This work included a set of drawings covering all disciplines and developed to the 25 to 30 percent completion stage at a minimum with some drawings developed to a greater degree. This stage of drawing development is significantly beyond the sketches and diagrams usually provided in Basis of Design or Preliminary Design Reports. For this [Basis of Design,] the referenced drawings are attached and should be examined when reviewing this [Basis of Design]. As such, a relatively small number of figures are contained within this [Basis of Design]. (Joint Exhibit 8, pp. 1-4.) The Basis of Design notes that the Project Team conducted "pilot-scale" studies of the chosen treatment processes using Lake Manatee raw water. The purpose of these studies was to validate the selected treatment processes, provide water quality data, and establish appropriate operating criteria, such as coagulant dosages. The Basis of Design addresses raw water quality issues. One table sets out values for 30 different water quality parameters for each of the three raw water sources. The Basis of Design discloses expected water quality data for 11 water quality parameters. Of particular interest are total nitrogen and total phosphorus because, as noted in the Basis of Design, the algal life-cycle increases dissolved organic carbon and nutrient concentrations in reservoir water, and the "severity of this problem is impossible to predict." (Joint Exhibit 8, pp. 2-4.) The expected water quality values for total nitrogen and total phosphorus, respectively, are, on average, 0.8 and 0.55 mg/L and, at maximum, 1.6 and 2.1 mg/L. Each of the three surface waters approaches the average values, but none approaches the maximum values, for total nitrogen. The same is true for total phosphorus for the Tampa Bypass Canal and Hillsborough River. However, for the Alafia River, total phosphorus is 2.09 mg/L, so the raw water from the Alafia River may present a substantial treatment challenge, as it exceeds even the maximum expected value for total phosphorus. An error in Table 2-4 in reporting the maximum and average values of manganese (either the maximum value should be 0.02 mg/L or the average value should be 0.001 mg/L) and the omission of a turbidity parameter expressed in NTUs precludes analysis of these water quality parameters. However, the other expected parameters appear to reflect the actual water quality of these three surface waters. Section 4 of the Basis of Design describes the facilities and design criteria for the SWTP. This section begins with site grading, roadways, yardpiping, and stormwater management and extends to detailed discussions of the pretreatment and treatment processes, including the ACTIFLO, ozone contactor, and biologically active filtration. Urgency of New Means of Producing Drinking Water The SWTP is the hub of a network of production, storage, transmission, and distribution facilities that TBW plans to bring online in order to meet the requirements and deadlines set forth in the Consolidated Permit and other documents. The urgency for bringing this component of these new facilities online as soon as possible is due to environmental reasons, as well as the financial and legal reasons set forth above. Overpumping of existing wellfields has drawn down water levels in surface waters and wetlands, to the detriment of the overall level of biodiversity supported by these natural resources. Some lakes have been down 10 years, and a few have been down 40 or 50 years. During the recent drought, the City of Tampa, which obtains water from the Hillsborough River, lacked adequate volumes of surface water from which to produce sufficient finished water to meet the demand of its customers. Not surprisingly, these supply problems are accompanied by record withdrawals from the 11 Wellfields. Withdrawals in May and June of this year were the highest monthly withdrawals on record--208 MGD and 175 MGD, respectively. If the drought continues and TBW continues to meet the demands of its customers, TBW's withdrawals from the 11 Wellfields will exceed the permitted 158 MGD, on a rolling 36-month average, by April 2001. Wellfield overpumping has stressed the groundwaters. Although surface waters respond to substantial rains in as little as a day or two, groundwater takes significantly longer to respond. The surficial water table is as much as 20 feet below ground level, and the Floridan Aquifer is even deeper. The surficial aquifer does not begin to respond to substantial rains for one week, and the Floridan Aquifer begins to respond in two to four weeks. The condition of the surficial and Floridan aquifers affects the Hillsborough River and Tampa Bypass Canal, which are significantly recharged by the surficial and, sometimes, the Floridan Aquifer. The Floridan Aquifer is especially important to the Tampa Bypass Canal, whose rock bed has been breached. During dry periods, the two aquifers are the primary sources of recharge for these two surface waters. The Alafia River is more confined, but gets water from the Floridan Aquifer through two springs at the head of the river. TBW has already made substantial gains through conservation and has met the goal of nearly 10 MGD for 2000. Over the next 20 years, maximum potential gains are expected to be no more than 74-94 MGD. Conservation will continue to play an important role in securing adequate drinking water supplies in the Tampa Bay area, but conservation, even in conjunction with reclaimed water, will not suffice, especially when future population growth in the area is considered. TBW also manages wellfield production efficiently. Under its Optimized Regulatory Operations Plan, TBW collects and analyzes wellfield data to determine which wellfield to tap, notwithstanding specific limits set by wellfield, in order to minimize environmental damage. The consumptive use permits issued to TBW for the surface waters that will provide raw water to the SWTP restrict the amounts and timing of the removals. Additionally, a hydrobiological monitoring program requires the collection and analysis of data to safeguard against adverse effects in the rivers and, downstream, in the estuary. The contractual deadline for delivery of the SWTP is September 30, 2002. The timeframe for bringing online the SWTP necessarily relies on acceptance testing in the wet season, during which 60-65 percent of the annual rain occurs. The wet season extends from mid June to the end of September. Acceptance testing of the SWTP is imperative toward the end of this period because this is when the water quality of the surface waters bears the highest levels of the contaminants. Thus, if delays postpone beyond the wet season the point at which acceptance testing can take place, the postponement will effectively be until the next wet season and, possibly, the end of the next wet season. Permitting the Design, Build Process for the Surface Water Treatment Plant General The DB process envisioned by TBW would essentially break into phases the process by which TBW would obtain the necessary Public Drinking Water Treatment Construction Permit (Permit). The Permit initially would be based on "30 percent plans," which reflect about a 30 percent level of effort toward the overall design work or 30 percent completion of all of the design work (30 Percent Plans). Generally, 30 Percent Plans mark the end of the preliminary design phase. Plans reflecting 30, 60 and 90 percent levels of effort are customary in DBB processes, as these are the stages at which owners typically review design work. In 30 Percent Plans, some items are designed to 100 percent and other items are not designed at all. However, 30 Percent Plans provide reasonable assurance that the designed system is constructable. In essence, the Permit initially would be a conceptual permit for the entire SWTP coupled with a construction permit for those components for which the design is already complete on the 30 Percent Plans. Construction of each remaining component of the SWTP would await subsequent permit modifications authorizing construction of that component. As noted above, the May 18, 2000, cover letter anticipates another interim permit, or permit modification, covering specific components, and then the final permit, or permit modification, covering the entire SWTP. The DEP district office in Orlando has substantial experience with permitting DB water treatment projects. From 1996-98, the DEP Orlando office has permitted four such projects for the Orlando Utilities Commission and one such project for the City of Kissimmee. One of the Orlando Utilities Commission projects was to construct a completely new water treatment plant. Based on the experience of the DEP Orlando office, DB permitting, when based initially on 30 Percent Plans, shortens and simplifies the permitting process. DB permitting eliminates, or at least postpones, the presentation of elements, such as electrical and HVAC, that are irrelevant to the permitting process; the elimination of elements irrelevant to permitting from the initial designs helps the regulator find the elements that are relevant to the permitting process. Also, the experience of the DEP Orlando office is that the DB process results in no more permit modifications for change orders than are typical of a conventional DBB process. The DB-approval process used by the DEP Orlando office is modeled after the DEP-permitting process for wastewater treatment plants. DEP rules allow DB permitting of these plants, which are similar in construction to water treatment plants. In fact, DEP is preparing to adopt rules to allow DB permitting of water treatment plants. Because the DEP Orlando office did not issue variances from the rules that arguably preclude DB construction of water treatment plants, there is no precedent for the issuance of the variance sought in this case. However, the experience of the DEP Orlando office is that applicants do not present basic design changes after the initial submission, and DB permitting does not mean that regulatory objectives are sacrificed to the expediency sought by the applicant. The Present Case On April 11, 2000, Camp Dresser, on behalf of TBW, filed with the Health Department an Application for a Public Drinking Water Facility Construction Permit. The April 2000 drawings that accompanied the April 11, 2000, application are described above. The cover letter to the Health Department notes that, "upon conceptual approval of the project, individual components will be permitted through permit modifications based on submittals of complete drawings and specifications for each component." In this case, the availability of the Basis of Design meant that the 30 Percent Plans reflected more than a 30 percent level of effort or completion of the five-stage process of pretreatment, pH adjustment, ozone contactors, filtration, and storage in tanks. The engineer had already sized the facilities and defined all of the processes and elements of the SWTP. The April 2000 drawings, as supplemented by the Basis of Design, therefore presented a relatively detailed description of the scope, elements, and processes of the project. On May 18, 2000, Camp Dresser submitted to the Health Department more advanced drawings, which are dated May 18, 2000. The cover letter explains that the drawings are a complete set of Phase I drawings and specifications. The letter states that Camp Dresser intends to file complete drawings and specifications in three phases. Phase I, which is completed with the May 2000 drawings, consists of sitework, high rate flocculation and sedimentation, and ozone contact tanks. Phase II consists of biologically active granulated active carbon filters, clearwell, and gravity thickeners. Phase III consists of the remainder of the project. As of July 3, 2000, prior to the final hearing, the design for the SWTP had reached the 60 percent level of effort or completion. Although the SWTP described in the DBO Contract, Basis of Design, and May drawings is a relatively large, complex facility, it does not employ unproven technology. The standardization of design and regulatory review is facilitated by the use of the so-called Ten States' Standards, which are standards commonly used by the permitting authorities of numerous states, including Florida, to determine the capabilities of specified treatment processes in achieving specific water quality levels. Although the ACTIFLO technology is relatively new, it has been in use for at least five years. A pretreatment sedimentation barrier that reduces treatment time and thus tankage volume requirements, ACTIFLO is in use in a water treatment plant with a capacity of 60 MGD in Canada, which TBW's selection team members visited. ACTIFLO presently is being incorporated into a surface water treatment plant in Melbourne, Florida, where it must treat the nutrient-rich water of Lake Washington and the St. Johns River. The City of Tampa is adding ACTIFLO basins to its facilities. Also significant is the fact that ACTIFLO easily passed the pilot test on Lake Manatee. At present, 25 facilities using ACTIFLO are under design or construction in North America. As is consistent with the theory, the DBO process for designing, building, and operating the SWTP has demanded greater cooperation among the three entities that operate relatively independently in the DBB process. Pursuant to their obligations under the DBO Contract, Camp Dresser, Clark, and USFilter have coordinated, and likely will continue to coordinate, their efforts closely from design and construction, up to operation, to save time and money from the traditional DBB process, in which the design phase, construction phase, and operation phase are relatively independent of each other. The Variance In general, DEP has the authority to issue public drinking water treatment construction permits. The successful applicant obtains one permit--for construction and operation. There are no conceptual permits or separate operating permits. In Hillsborough County, as well as 10 other counties, DEP has delegated its responsibilities for issuing public drinking water treatment construction permits. In Hillsborough County, DEP has delegated this responsibility by an interagency agreement to the Health Department. Applying DEP rules to determine whether to issue a public drinking water construction permit, the Health Department defers to DEP for the issuance of variances from DEP rules. In typical permitting cases, the Health Department uses its own staff in processing the application and reaching a permitting decision. In a large case, such as this, the Health Department's lone professional engineer, who was hired in September 1999, can obtain considerable assistance from professional engineers within the Tampa Bay area and professional engineers employed by DEP. Perceiving a possible incompatibility between the DB process and the rules from which the variance is sought in this case, TBW initially filed a request for a variance with the Health Department. However, the Health Department declined to issue a variance to DEP rules and informed TBW that it had to file its request with DEP. Thus, on January 10, 2000, TBW filed a petition for a variance with DEP. On March 28, 2000, DEP issued a final order, pursuant to Section 120.542, Florida Statutes, granting the requested variance from Rule 62-555.520(4)(c) and (d), Florida Administrative Code (Variance). The Variance finds that the purpose of the underlying statutes would be met "because no component of the project would be permitted or constructed without review by the permitting authority of the complete plans and specifications for that portion of the project." The Variance finds that the DB approach will protect the public health, safety, and welfare in providing safe drinking water without exacerbating possible negative environmental impacts from the overuse of groundwater. The Variance relieves TBW of the necessity of complying with two subsections of the rule governing the contents of applications for a public drinking water construction permit. Rule 62-555.520(4)(c) and (d), Florida Administrative Code, provides: The permit application form sets forth the minimum information which is to be supplied to the Department or the Approved County Health Department. Additional information may be required by the Department to clarify information submitted in the permit application or to demonstrate that the proposed level of treatment will effectively treat the contaminants present in the raw water. The information required by the application is as follows: * * * Prints of drawings of the work project which contain sufficient detail to clearly apprise the Department of the work to be undertaken. All prints shall be minimum of 18 x 24 inches and a maximum size of 36 x 42 inches. The scale of details contained shall be satisfactory for microfilm reproduction. (Reduced size photographic reproduction of drawings for submission may be authorized.) Complete specifications of the project necessary to supplement the prints submitted. The issuance of the Variance by DEP has met with approval, albeit cautious approval, by the Health Department. One Health Department witness was an Engineer III, who is 19-year employee of the Health Department and supervisor of four Environmental Specialists charged with reviewing construction plans for drinking water plants. He testified that he agreed with DEP's final order granting the Variance. The Engineer III and the other Health Department witness, its professional engineer, testified that the issuance of the initial permit would not influence the Health Department in deciding whether to issue permit modifications, except to ensure compatibility. Allowing TBW not to comply with Rule 62-555.520(4)(c) and (d), Florida Administrative Code, the Variance provides that the initial permit shall not authorize the construction of any component of the SWTP; each component may be constructed only after the submission of complete plans and specifications for that component and the issuance of a permit modification based on those complete plans and specifications. The Variance also provides that the permitting authority shall publish a notice of intent to issue a permit modification "if the permitting authority believes that the modifications are of a controversial nature, or that there is heightened public awareness of the project." Save Our Bays and Canals, Inc. The Verified Amended Petition On May 1, 2000, Petitioner filed a petition challenging the Variance. On June 29, 2000, Petitioner filed an amended petition challenging the Variance, and the Administrative Law Judge granted Petitioner leave to file an amended petition on July 3, 2000. At the start of the hearing, on July 7, 2000, Petitioner filed a verified amended petition, which was identical to the amended petition, except that, on July 6, 2000, Petitioner's president had verified the pleading "to the best of [his] knowledge, information and belief." The verified amended petition states that Petitioner has over 400 members. The verified amended petition alleges that a substantial number of Petitioner's members will consume the finished water produced by the SWTP and will use the surface waters supplying the SWTP for recreation. The verified amended petition states that the purpose of Petitioner is to save the bays, canals, and waterways of the Tampa Bay area and to ensure safe drinking water for its members and residents of the Tampa Bay area. The verified amended petition states that the Variance affects Petitioner because it would allow the issuance of the Permit and construction of initial phases of the SWTP prior to submittal, review, and approval of complete plans for the next and subsequent phases. The verified amended petition alleges that Petitioner incorporated to pool its resources to review applications, so as to ensure safe drinking water. The verified amended petition states that submittal and review of a complete set of drawings and specifications is necessary prior to construction of the SWTP to ensure the ability of the facility to comply with state drinking water standards. The verified amended petition states that review of all individual components of the SWTP is necessary to assure the protection of the public health, safety, and welfare and the compliance with all applicable state and federal laws. Addressing specifically the 30 Percent Plans, the verified amended petition objects to the absence of a list of items to be included in the 30 Percent Plans. The verified amended petition alleges that this piecemeal approach to permitting will require Petitioner to request administrative hearings on each phase of permitting. The verified amended petition states that the Variance may have adverse environmental and safety impacts that cannot be evaluated fully without a submittal and review of the complete drawings and specifications. The verified amended petition states that the DBO approach is "self-created." The verified amended petition objects to the failure of TBW to obtain the Variance before issuing the RFP and instead using the DBO Contract as a basis for claiming hardship so as to qualify for the Variance. The verified amended petition states that the number of variances issued for similar 30 Percent Plans threatens to create a situation in which the variance subsumes the rule requiring complete drawings and specifications. The verified amended petition objects to this form of unwritten policy that has not been published as a rule. The verified amended petition states that the phased permitting of the SWTP may create permitting momentum that discourages a rigorous application of the rules at a later stage. The verified amended petition states that the request for a variance is improper because it is for a variance from statutes, not rules. The verified amended petition states that Section 403.861(10), Florida Statutes, requires DEP or Health Department approval of "complete plans and specifications prior to the installation, operation, alteration, or extension of any public water system." The verified amended petition states that "installation" means construction. The verified amended petition states that Section 403.861(5), Florida Statutes, prohibits the issuance of a public drinking water treatment construction permit "until the water system has been determined to have the required capabilities . . .." The verified amended petition states that the assurances of USFilter are insufficient to satisfy this requirement. The verified amended petition states that Section 120.542, Florida Statutes, which authorizes the variance procedure used in this case, does not authorize variances for compliance with federal law. The verified amended petition states that TBW must obtain a federal variance in order to obtain the Variance. The verified amended petition states that the 30 Percent Plans omit information required for permitting, such as the listing of a certified operator, monitoring and recordkeeping programs, and various financial elements, such as the posting of a bond and creation of reserves to demonstrate financial soundness. The verified amended petition states that TBW's substantial hardship is based on contract deadlines that are entirely self-created and, thus, insufficient to warrant a variance. The verified amended petition notes that the environmental damage cited as a basis for granting the Variance "was caused by years of overpumping by . . . TBW . . .." Also, the verified amended petition states that member governments of TBW continue to approve new development, which increases the demand for drinking water, because TBW and its member governments have failed to exploit fully the potential for conservation and reclaimed water. Similarly, the verified amended petition states that SWFWMD helped create the hardship by renewing the permits for additional withdrawals from the 11 Wellfields. The verified amended petition states that the DBO process will not necessarily save time and money and is not a recognized exception to the general requirement that an applicant must submit complete drawings and specifications prior to permitting. The verified amended petition states that 30 Percent Plans do not provide sufficient detail to know what the contractor is promising to build, and it would be faster to correct any mistakes prior to the start of construction, rather than after the start of construction. Standing Petitioner was an unincorporated association from its formation in early October 1999 through February 3, 2000, when it was incorporated as a Florida not-for-profit corporation. Originally named Save Our Bays and Canals Association, the unincorporated association was formed by members of the Apollo Beach Civic Association who were concerned about the environmental impact upon their bays and canals of intensive utility and industrial land uses in close proximity to their homes. Apollo Beach is an unincorporated area along the southeast shore of Tampa Bay, just south of the mouth of the Alafia River. The land uses with which the unincorporated association has been concerned in its brief existence include a sulfur plant, the TECO Big Bend plant, a proposed National Gypsum plant, a proposed concrete plant, the proposed Desal Plant, and, now the proposed SWTP. The Apollo Beach area is very close to the proposed site of the Desal Plant, but is about 17 miles south southeast from the proposed site of the SWTP. Petitioner and its members are primarily concerned with the Desal Plant, not the SWTP. However, Petitioner and its members express concern with the SWTP. The concerns are that DB permitting of the SWTP will jeopardize the production of safe drinking water and will result in greater costs to TBW customers, who will eventually bear the financial burden of costly reworking of a hastily designed and constructed project. Standing analysis is simplified by the elimination of the issue of whether the verification of the amended petition confers standing. The claims of Petitioner in this case do not rise to the level of an attempt to prevent an activity, conduct, or product to be permitted from impairing, polluting, or otherwise injuring the air, water, or other natural resources of the State. First, finished drinking water is not a natural resource of the State. Although a resource, finished drinking water is not natural. Although of lower water quality, raw water is a natural resource. The potable water leaving the SWTP is a manufactured resource. Second, even if finished drinking water were a natural resource, the issuance of the Variance does not have the effect of impairing, polluting, or otherwise injuring a natural resource. The Variance excuses compliance with two rules requiring complete drawings and specifications. Even assuming that the SWTP would impair, pollute, or otherwise injure natural resources, the Variance would not have such an effect because the act of granting the Variance is distinct from the act of granting the Permit itself. Thus, facts regarding the circumstances under which Petitioner's president verified the amended petition are irrelevant for the purpose of determining standing. Petitioner's standing is a function of the characteristics of the corporation and its members. At the corporate level, the articles of incorporation state that the "specific and primary purposes for which this corporation is formed are to operate for the public education and advancement of the water quality of Tampa Bay, its tributaries, its estuaries and its canals and for other charitable purposes, by the distribution of its funds for such purposes." There is some indication in the record of an attempt, after filing the petition commencing this proceeding, to amend the articles of incorporation to state, among Petitioner's purposes, the protection of drinking water. The record does not contain the written articles of incorporation, as amended, or amended articles of incorporation after February 3, 2000. However, for the purpose of this recommended order, the Administrative Law Judge shall assume that such an amendment was made at some point after the filing of the petition and before the final hearing. At the membership level, the water to be produced by the SWTP will be distributed primarily to customers in Pasco and Pinellas counties, St. Petersburg, and the Northwest Service Area of Hillsborough County, not to Apollo Beach, which is in southern Hillsborough County. Nearly all of Petitioner's members reside in Apollo Beach or other nearby communities, which also will not be served by the SWTP. Although an insubstantial number of Petitioner's members will consume finished water from the SWTP in their homes, a substantial number will consume finished water from the SWTP at their places of work or schools and where they shop or dine out. Drinking water is ubiquitous, and the mixture of functional land uses in Apollo Beach is not, so it is highly probable that members of Petitioner will travel the three-county area in connection with their employment, education, and recreation. Close analysis of the characteristics of Petitioner and its members reveals no basis for finding standing to challenge the Variance. Nothing in the record suggests that Petitioner or any of its members have devoted themselves to the arcane task of resisting a perceived trend of state and local agencies to issue series of permits in response to DB proposals--or, more colorfully, to engage in "piecemeal permitting." About the only interest that Petitioner can legitimately claim in DB permitting is that multiple points of entry, at each permit and permit modification, will result in additional expense. If Petitioner has standing to contest even the permitting of the SWTP, Petitioner must petition each time for an administrative hearing, conduct discovery, and participate in the final hearing. However, this seems, at most, like a tenuous interest, which suffers also from the speculation that later stages of the DB permitting process will continue to present new issues not raised in the challenge of the Permit initially approved. Turning to the members themselves, their consumption of drinking water produced by the SWTP is no basis for standing either because the attenuated relationship between the Variance, which excuses compliance with two rules concerning the contents of applications, and the safety of drinking water or the additional costs that could arise from hasty designing, constructing, or permitting. Although it is conceivable that a record could have been made that the DB permitting proposed in this case would likely result in incomplete, incompetent permitting review, so as to jeopardize the public health if the permit were to issue, the record in this case does not support such a contention. To the contrary, the record establishes that the DB permitting is at least as likely as DBB permitting to provide the regulatory oversight necessary to assure the design and construction of a successful public drinking water treatment plant Lacking a substantial nexus in the record between the DB permitting authorized by the Variance and the quality of the drinking water that, if the Health Department issues the Permit, would likely be produced by the SWTP and likelihood of success of the overall construction project, the members of Petitioner likewise lack standing to challenge the Variance. Ultimate Findings of Fact Petitioner and its members lack standing to challenge the Variance. TBW faces a substantial hardship if not given the Variance. The legal and financial consequences of a failure to meet the phased-in withdrawal reductions are real and substantial. The environmental damage caused by overpumping the 11 Wellfields underscores the urgency of developing alternative sources of raw water for production into finished drinking water. The rule from which TBW seeks the Variance is derived from the statute discussed in the Conclusions of Law. The underlying purpose of this statute is the protection of the public health, safety, and welfare. The Variance serves the underlying purposes in two respects. First, the 30 Percent Plans contain sufficient detail to allow permitting to proceed without jeopardizing the objective of the rules to ensure that the USFilter team designs and constructs a water treatment plant that is in full compliance with all federal and state law. Second, the Variance provides that the USFilter team shall construct no component of the SWTP until it has been permitted, either initially or by a permit modification. Petitioner's Liability for Attorneys' Fees and Costs Petitioner has a Technical Committee on which Petitioner relies for examination of technical aspects of matters that are of general concern to Petitioner. This committee obtained a copy of the Variance and, after examination and discussion, developed a position in opposition to DEP's stated intent to grant the Variance. The Chair of Petitioner's Technical Committee, who has a bachelor of science degree in chemistry and is an industrial hygienist, drafted a letter reflecting the opinion of the committee in opposition to the Variance. Petitioner's attorney then converted this letter into the petition that commenced this proceeding. At all times, the Board of Directors of Petitioner approved the actions of the Technical Committee and Petitioner's attorney, including the filing of the petition. When Petitioner's president verified the amended petition, he reasonably relied on the advice of counsel concerning the substance of the assertions, and the advice of counsel was based on the work of the Technical Committee. Petitioner's president also reasonably relied on the work of the Technical Committee when he verified the amended petition. Although DB permitting has been available for the design and construction of wastewater treatment plants for an undetermined period of time, DB permitting for the design and construction of public drinking water plants is a new concept. The concept is so new that the DEP Orlando office mistakenly issued at least 2 DB permits for public drinking water plants without requiring the applicant to obtain a variance from the two rules that prevent DB permitting for such facilities. The concept is so new that the key Health Department employees have expressed concern over personnel demands from this new means of permitting, although they have also expressed at least lukewarm support for the Variance. The record portrays the employees of the Health Department as hard-working and competent, but over-burdened. The DB permitting obviously places significant responsibilities upon the Health Department, especially as it familiarizes itself with DP permitting. Although the availability of professional support from other sources, including DEP, ultimately resolves this issue, the situation of the Health Department also is relevant in assessing Petitioner's liability for attorneys' fees and costs. Two or three aspects of the drawings were deficient, according to Petitioner's professional engineer, whose testimony has been admitted despite the unreasonably restricted opportunity presented for cross-examination by his contractually driven refusal to identify past clients or jobs. Although none of these items seems likely to jeopardize a successful construction project, these were design points on which well-informed professionals could reasonably differ. Although the issue of "improper purpose" presents a closer question than the substantive issues discussed above, there is inadequate subjective or objective evidence in the record supporting TBW's claim for attorneys' fees and costs on this ground. Ultimately, the novelty of DB permitting of drinking water treatment plants precludes a finding of improper purpose. All available facts drive this determination, and, at this point in time, the relative uniqueness of DB permitting of drinking water treatment plants to DEP, the Health Department, and Petitioner and its members provides the necessary margin to preclude a finding of improper purpose.
Recommendation It is RECOMMENDED that the Department of Environmental Protection enter a final order granting the Variance and denying the request of Tampa Bay Water for attorneys' fees and costs. DONE AND ENTERED this 24th day of July, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 24th day of July, 2000. COPIES FURNISHED: Kathy C. Carter, Agency Clerk Office of General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Ralf G. Brookes, Attorney 1217 East Cape Coral Parkway Suite 107 Cape Coral, Florida 33904 Donald D. Conn, General Counsel Tampa Bay Water 2535 Landmark Drive, Suite 211 Clearwater, Florida 33761 J. Frazier Carraway Thomas A. Lash Salem, Saxon & Nielson, P.A. 101 East Kennedy Boulevard Suite 3200 Tampa, Florida 33601 Cynthia K. Christen Senior Assistant General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 William S. Bilenky General Counsel Jack R. Pepper, Jr. Associate General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
Findings Of Fact During approximately 1961, the Board of County Commissioners of Orange County adopted the Orange County Conservation and Water Control Act. This act included a comprehensive drainage plan. Orange County is divided into several natural drainage basins. The Petitioner is presently actively seeking to implement the comprehensive drainage plan in what is known as the Upper Howell Branch drainage basin. The proposed Lateral H-15 forms a part of the drainage plan in the Upper Howell Branch drainage basin. The proposed Lateral H-l5 would begin at the outfall of Park Lake, and would extend approximately 1900 feet to Lake Maitland. Lateral H-l5 would allow the controlled lowering of Park Lake, with excess water flowing into Lake Maitland. Lateral H-15 as proposed would be a structure with a concrete paved bottom. It would be 18 feet wide, and would have vertical side walls constructed of aluminum siding. A weir would be constructed at the Park Lake outfall, and a new crossover would be constructed at the point where Highway 17-92 crosses over the project. The depth of the structure would be 5 feet. At peak flows water would flow at four foot depths leaving a one foot free area. The structure has been designed to allow passage of peak flows of water using as little land area as possible. Vertical side walls have been proposed in order to limit the amount of property which the Petitioner would need to obtain in order to construct the project. The Petitioner's comprehensive drainage plan is designed to ultimately prevent flooding which would result from a "25 year storm". The term "25 year storm" means that there is a 4 percent chance that such a storm would occur in any given year. The Petitioner's comprehensive plan for the Upper Howell Branch basin is depicted in an aerial photograph which was received into evidence as Petitioner's Exhibit 1. Generally, waters within the basin will flow from Lake Killarney through Lateral H-22, which is nearly completed, and from Lake Bell through the Lake Bell Lateral, which has been completed, into Park Lake. The Lake Bell Lateral and Lateral H-22 permit the controlled lowering of the water in Lake Bell and Lake Killarney into Park Lake. Lateral H-15 would permit the controlled lowering of the waters of Park Lake into Lake Maitland. Waters from Lake Maitland would then flow out of the drainage basin through Howell Creek which is now extremely swampy. Petitioner proposes ultimately to clear Howell Creek so that it can accept peak water loads from Lake Maitland. The proposed Lateral H-15 would follow the channel presently followed by a naturally occurring creek bed known as the Maitland Branch. Maitland Branch is a dried up waterway during dry weather periods. When waters in Park Lake rise during rainy seasons, overflow goes through the Maitland Branch into Lake Maitland. In addition storm runoff from areas surrounding the Maitland Branch drain into Maitland Branch and then into Lake Maitland. At its most Westward point, adjacent to Park Lake, the Maitland Brunch is approximately 40- 50 feet wide. A railroad crosses the branch near to the Park Lake outfall and the pipe and culvert under the railroad control the water level in the branch. The branch then extends under Highway 17-92, and into Lake Maitland. From the railroad, into Lake Maitland, Maitland Branch is confined to a narrow channel. The Maitland Branch is not a navigable water body. Lake Maitland is a navigable water body. Petitioner's proposed dredging activities would extend approximately 55 yards into Lake Maitland in order to permit the free flow of waters through the proposed Lateral H-15 into Lake Maitland. Maitland Branch is dominated by a variety of emergent and aquatic vegetation. Maitland Branch presently serves a significant function in preserving the waters of Lake Maitland. The water quality of Lake Maitland is presently good. Tests taken within the lake do not reveal violations of the Respondent's water quality rules and regulations. The lake is, however, dominated by hydrilla, and does not support a diverse aquatic plant population. The water quality in Lake Park is inferior to that of Lake Maitland. Lake Park is dominated by algal growths. During periods of high water, the waters of Park Lake flow through Maitland Branch. The aquatic vegetation in Maitland Branch serves to filter the waters and to assimilate nutrients contained in the water before the water enters Lake Maitland. Approximately 27 acres of impervious surfaces adjacent to the Maitland Branch drain directly into the branch. Storm water runs across the surfaces into Maitland Branch generally without the benefit of any filtration mechanism at all. Without the aquatic vegetation present in Maitland Branch, this storm water runoff would enter Lake Maitland without being filtered, and without nutrients being assimilated by vegetation. Aquatic vegetation in Maitland Branch does serve the filtration and assimilative functions outlined above. The degree of filtration and assimilation that is occurring is not subject to any finite measurement. No scientific means exists for accomplishing such a measurement. The very fact that the vegetation is flourishing, provides scientific evidence that the assimilation of nutrients is occurring. Furthermore, the large amounts of toxic substances which enter the Maitland Branch would cause a very rapid and provocative deterioration of the waters of Lake Maitland unless the runoff were filtered. The fact that the water of Lake Maitland is of fairly good quality evidences the fact that filtration and assimilation functions are occurring in Maitland Brunch. The Petitioner sought to demonstrate that the aquatic, vegetation in the Maitland Branch does not serve to filter the waters, or to assimilate nutrients. Petitioner's testimony tends to show that the water quality of waters at the Park Lake outfall and at the western extremes, of the Maitland Branch are of higher quality than waters at the end of Maitland Branch closest to Lake Maitland. This evidence is not creditable. In the first place the sampling techniques used by the Petitioner's agents were inadequate. Too few samples were taken to permit the drawing of any proper scientific conclusions. The samples were not taken simultaneously and in some cases samples taken at the Park Lake outfall were taken several days prior to the taking of samples at sampling stations closer to Lake Maitland. Furthermore, samples were taken at times when vegetation in the Maitland Branch was most sparse. One group of samples was taken just subsequent to a freeze which killed all of the vegetation. Another group of samples was taken shortly after the Petitioner had removed vegetation from the Maitland Branch in accordance with a temporary permit that had been issued by the Respondent (see discussion in paragraph 9 infra) Even if the Petitioner's samples had been taken in such a way that the conclusion could be drawn that the water quality in Maitland Branch is worse close to Lake Maitland that it is at the Park Lake outfall, it would still be clear that the aquatic vegetation in the branch is performing its important environmental function. Runoff from adjacent impervious surfaces into Lake Maitland constitutes water of the poorest possible quality. It is thus to be expected that the water quality of the branch would be worse at the points farthest from the Park Lake outfall where more runoff water can accumulate. This does not however permit the conclusion that no filtration and assimilation is occurring, but rather amplifies the necessity for such functions if the water quality of Lake Maitland is to be preserved. Petitioner's proposed Lateral H-15 would constitute a source of pollution for the waters of Lake Maitland. The concrete bottom of Lateral H-15 would reduce the PH level of water the branch and could result in violations of PH standards set out in the Respondent's rules and regulations. Emergent and attached aquatic vegetation could not exist in Lateral H-15. There would be no place for such vegetation to take root. The only sort of vegetation that could take hold would be water hyacinths. During peak water flows these hyacinths would be flushed out of the branch into Lake Maitland. While water hyacinths do serve to filter water that flows through them and to assimilate nutrients from the water, they are not attached, and do not serve that function as well as attached aquatic vegetation. Since water hyacinths would be washed out of the branch during periods of heavy storm runoff, when filtration and assimilation are most essential, they would not be likely to serve to maintain the water quality of Lake Maitland to the extent that the present vegetation in Maitland Branch serves this function. Lateral H-15, with the reduced ability to preserve water quality would permit water of inferior quality from Park Lake to enter Lake Maitland, and would permit storm runoff with high levels of pollutants to enter Lake Maitland. The amount of injury to water quality in Lake Maitland that would result from replacing Maitland Branch with Lateral H-15 cannot be measured finitely. It is, however, clear from the evidence that injury is certain. The frequency of water quality violations, the degree of degradation of the water, and the amount of consequent harm to fish and wildlife in Lake Maitland that will result from Petitioner's proposed project are matters for speculation. It does appear that violations will occur, that the water will be degraded, and that fish and wildlife will be harmed. The testimony will clearly not support a finding that Petitioner has given reasonable assurance that water quality violations will not occur, that the quality of water will not be degraded, and that fish and wildlife will not be harmed. The Respondent within recent months had issued a permit allowing the Petitioner to remove aquatic vegetation from the Maitland Branch between the railroad which crosses the branch near to the Park Lake outfall , and Highway 17-92 which crosses the branch approximately halfway between Park Lake and Lake Maitland. Issuance of this permit does not demonstrate that the Respondent sees no value in the aquatic vegetation of Maitland Branch. Aquatic vegetation will rapidly reestablish itself in the area, and it will be missing for only a temporary period. In addition, the Petitioner was permitted to remove vegetation from less than half of the length of Maitland Branch.
