Findings Of Fact By Pre-Hearing Stipulation, the parties agreed, and it is so found, that the District is a public corporation in Florida under Chapter 373, Florida Statutes, and Chapter 40E, F.A.C.. It exists as a multipurpose water management district with its principal office in West Palm Beach. Respondent James P. McCarthy and his wife, Rebecca, reside at 6017 Southern Road South in West Palm Beach. This property is located within Section 3, Township 44 South, Range 42 East, in Palm Beach County. On December 31, 1991, the District issued a Notice of Violation to the Respondent notifying him that his 2 inch pvc irrigation line, exposed near the top of the bank due to erosion, constituted an encroachment on the District's right-of-way adjacent to Canal 51 at the rear of his property. The line was not removed. On April 9, 1992, the District issued its Second Notice of Violation to Respondent McCarthy assessing a civil penalty in the ultimate amount of $560.00 for the same alleged encroachment, and on April 24, 1992, Mr. McCarthy filed his Petition for Formal Hearing to contest that action. Mr. McCarthy does not contest the fact that the line exists as indicated by the District but debates the allegation that it constitutes an encroachment violation requiring a permit, contending that the District has failed to properly complete the work it promised to do on his property, the completion of which is a condition precedent to the requirement for a permit. The South Florida Water Management District owns a right-of-way located on the south bank adjacent to C-51 canal in West Palm Beach, and the McCarthy's property is adjacent to that right-of-way. They have constructed a 1 1/2 inch PVC lawn irrigation line from the sprinkler system in their backyard beneath and across the District's right-of-way into the canal. According to Douglas Sykes, the District's senior engineering field representative in the area, who inspected the McCarthy's pipe line subsequent to the completion of the Corps' work, the line meets the District's standards and is permittable. All that is required is for McCarthy to make the requisite application and pay the permit fee. On April 17, 1989, the McCarthys and the District entered into a written Settlement Agreement by which both granted deeds to each other for portions of the land adjacent to the canal for the payment of the sum of $11,000.00, plus attorneys fees, to be paid to the McCarthys. This agreement did not, however, address either the slope or grade of the canal bank adjacent to the McCarthy property. The bank slope was to be constructed by the U.S. Army Corps of Engineers in accordance with their proposed constructions plans. The agreement did, however, call for the McCarthys to obtain an irrigation permit pursuant to District criteria "after completion of construction." The Director of the District's Right-of-Way Division, responsible for the enforcement of the occupancy regulations in the right-of-way, considered the canal complete when the Corps ceased its construction activities and removed its equipment. This was done before September, 1991. The Corps notified its contractor that it accepted the C-51 project as complete on March 20, 1991. Mr. Sykes also inspected the area subsequent to the departure of the Corps' contractor. He found the work to be consistent with the District requirements, though as late as June, 1992, some additional work was being done by the District on property to the east of the McCarthy property. There is some indication that when the District sought permission to cross McCarthy's property line to access that work area, permission was denied. The District crossed McCarthy's property anyway, causing some minor damage. This work has now ceased. The District employee who negotiated the settlement agreement with the McCarthys intended for the term "completion of construction" to mean the moment when the Corps relinquished its control of the right-of-way to the District. This was done on September 4, 1991. Other landowners applied for and received permits for irrigation lines when the Corps' contractor left the site. As McCarthy tells it, in early 1990, after the settlement agreement was signed, the heavy construction was begun on the canal project and the trees were removed. A roadway was put in and the contractor began to install a large earthenware berm on the property. After some of it was done, he stopped the workers and found that the berm should go on another property. It was removed and after that, no other work was done. Mr. McCarthy contends the agreed-upon canal bank was not properly constructed by the Corps. He claims the Corps' contractor left the canal bank without the required grading and in a rough state without sod. This is, supposedly, the only parcel that was not graded properly or sodded. He was left with a 1 1/2 :1 slope - very steep, and he complained about this in writing to the District because it was not what he claims they had all agreed upon. Mr. Shattner, the District's Director of Construction Management, indicates that regardless of what drawing is examined, the slope is no more gentle than 2:1. Throughout 1990 and 1991, Mr. McCarthy alleges, he repeatedly advised the District that it had not lived up to their agreement but never got an answer. The agreement does not define the slope to be used except as it referred to a survey which was supposedly attached to the agreement. Towards the end of 1991, Mrs. McCarthy wrote to Mr. Swartz of the District about the work but received no answer. She then called the office of Mr. Creel, the District Executive Director, to complain. On December 19, 1991, someone called back and agreed to send someone out to look at the berm. No one came, however, and the next contact with the District was the violation letter of December 31, 1991. Mr. McCarthy has repeatedly taken the position with the District that it has not lived up to the terms of its agreement with him and he will not apply for a permit for the line until the construction is completed properly. The current line complained of by the District is temporary and will be destroyed by the corrective construction. The residue of the Corps' work remaining on his property is, he complains, unsafe. It does not conform to either the county code or the District's own manual which calls for a 4:1 ratio.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be issued dismissing the assessment of the currently assessed $560.00 civil penalty against the Respondents herein, James and Rebecca McCarthy, but requiring them to apply within 30 days from the date of that Order for a permit to construct and maintain an irrigation pipeline across the District's right-of way for Canal C-51 at the rear of their property. RECOMMENDED this 30th day of December, 1992, 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 30th day of December, 1992. COPIES FURNISHED: Scott A. Glazier, Esquire Toni M. Leidy, Esquire South Florida Water Management District P.O. Box 24680 West Palm Beach, Florida 33416-4680 James P. and Rebecca R. McCarthy 6017 Southern Boulevard South West Palm Beach, Florida 33415 Tilford C. Creel Executive Director South Florida Water Management District P.O. Box 24680 West Palm Beach, Florida 33416
The Issue The issue is whether the Southwest Florida Water Management District's (District's) proposed construction of a temporary floating weed barrier across the mouth of the canal exiting to the southwest side of Lake Hancock in Polk County, Florida, is exempt from regulatory review under Section 373.406(6), Florida Statutes.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background This proceeding involves a request by the District for authorization to construct a temporary floating weed barrier across the mouth of the canal exiting the southwest side of the Lake in Polk County, Florida (County). After reviewing the request, and based on its determination that the project would "have only minimal or insignificant individual or cumulative adverse impacts on the water resources of the State," on September 27, 2002, the Department concluded that the project qualified for an exemption from regulatory review under Section 373.406(6), Florida Statutes. The Department also authorized the District to use state-owned submerged lands, if applicable, for the construction of the project, and it found that the project was in compliance with the SPGP program and thus required no further permitting from the United States Army Corps of Engineers (Corps of Engineers). Even if the Department had not considered the project to be exempt, it concluded that it had sufficient information and assurances from the District to grant a Noticed General Environmental Resource Permit (ERP) authorizing the requested activity. On December 2, 2002, Petitioner, Bruce Lahey, who has resided and owned property on the southwest side of the Lake for 15 years and regularly uses the Lake for fishing and recreational purposes, filed a Petition for Administrative Hearing (Petition) challenging the proposed agency action. In his Petition, as later clarified and narrowed in the parties' Joint Pre-Hearing Stipulation, Mr. Lahey contends that a weed barrier is no longer necessary since there has not been a weed problem in the Lake since late 2002; that the placement of a weed barrier will make access to and from the Lake more difficult and create a safety hazard; and that in the event a problem arises again, the more desirable options for removing the weeds are "a 'cookie-cutter,' mechanical harvester, or the spraying of [the] tussocks," rather than erecting a barrier. Finally, Mr. Lahey contends that as a matter of law, Section 369.20, Florida Statutes, bars the construction of a barrier. He has not challenged the Department's authorization for the District to use state-owned submerged lands or its determination that the project complies with the SPGP program, and therefore those aspects of the proposed agency action are not in issue. Respondents do not dispute that Mr. Lahey has standing to bring this action. The Lake and Control Structure The Lake is an approximately 4,500-acre Class III waterbody located east of Highway 98 and Highland City, southeast of Lakeland, and just northeast of the City of Bartow (Bartow). It receives drainage from a significant portion of the County, including three streams and runoff from a surrounding 131-square mile watershed. Waters discharge from the Lake to Saddle Creek (the canal), which exits at the southwest end of the Lake and runs in a southerly direction for around a mile and a half until it merges with the Peace Creek, where the two then become the Peace River. At the confluence of the canal and Peace Creek, the waters flow through a broad, flat floodplain. Water moves slowly through this area, which can affect the ability of the Lake to discharge, especially during flood conditions. Like the Lake and canal, the Peace Creek also has a significant contributing basin. The canal contains a District-owned and operated water control structure known as Water Control Structure P-11 (the control structure) consisting of two twenty-foot radial arm gates that are raised when necessary to manage the water levels on the Lake and prevent the flooding of lakefront property. The control structure is approximately 3,000 feet or so south of the Lake and is the only control structure regulating water levels for the Lake. The gates are designed to discharge at a flow level of 1,100 cubic feet per second (cfs). The invert elevation of the control structure is 91.7 feet and the crest elevation is 98.7 feet. Flows from the Lake will exceed 1,100 cfs when the water levels are higher than the crest elevation of the structure. At this point, water flows over the structure’s weirs and flood control is no longer provided. The maximum desirable water elevation level for the Lake is 98.5 feet above mean sea level (msl). Typically, the District begins to operate, or open, the control structure when the Lake's water elevation reaches 98.25 feet msl. A water level of 99.0 feet msl is considered minimum flood level (or high guidance level). The low management water elevation (low guidance level) is 96.0 feet msl. These established water levels have been maintained at the Lake since approximately 1981. The District seeks to hold the water level of the Lake close to the maximum desirable level, and typically tries to hold the water level at 98.25 feet msl, which is slightly below the maximum desirable level of 98.5 feet msl, to allow storage of water and some response time. The control structure is intended primarily to be a water conservation structure that regulates the Lake's water levels to benefit the water resources, to include the Lake and the Peace River. In managing the Lake's levels, the District balances conservation of the water resource and public safety/flooding concerns. The Lake's water level elevations are monitored through the District’s Supervisory Control and Data Acquisition System (SCADA), which measures the water level and transmits hourly data to the District offices via satellite. SCADA monitors are located immediately upstream and downstream of the control structure. Since the tussock blockage events in the summer and fall of 2002, described more fully below, the District has installed an additional SCADA monitor on the north end of the Lake so that water levels in the Lake and canal can be compared. The Lake does not have direct public access or a public boat ramp and is not easily accessible. In addition, in the canal, there is only one unimproved location upstream from the control structure where boats can be placed in the water and gain access to the Lake. That portion of the canal which lies between the Lake and the control structure has not always been open to boat access. In the 1980’s, a floating weed barrier extended across the canal approximately 1,000 feet upstream from the current control structure, which blocked the canal and boat access. This floating weed barrier was installed primarily to address problems with water hyacinths that would float down the canal and interfere with the control structure. This floating barrier gave way sometime in the 1990’s. An earlier control structure also used to exist in this area, which blocked canal access. Navigation of the canal is limited due to the existence of the control structure and a number of other blockages further downstream, including a low bridge where old Highway 17 crosses the canal. Thus, boats coming from the Lake cannot navigate down the canal any further than the control structure, or slightly more than one-half mile, without taking the boat out of the water. Between 1999 and 2001, the District experienced one of the most severe droughts on record. During this time, the Lake went dry except for some isolated pools of water. Because of these conditions, a significant amount of wetland or aquatic vegetation began to grow on the exposed bottom of the Lake. The Lake historically did not support much plant growth, due to its eutrophic condition, poor water quality, and gelatinous mucky lake bottom. The types of vegetation currently existing in the Lake include cattails, pickerelweed, duck potato, and primrose willow. Following the return of summer rains and El Nino conditions in 2002, the Lake rebounded to within normal water levels. Because of the return of water in the Lake, the buoyant pressure of the water combined with the flaccid nature of the mucky lake bottom caused significant portions of vegetation to become uprooted, which formed an extensive amount of tussocks. Tussocks are floating mats of uprooted aquatic vegetation. They contain plant and organic material accumulated around the plant roots, can range from a few feet across to one hundred feet across or larger, and can reach a height of more than four feet. Once tussocks form, they move about the Lake by wind and water currents. The amount of vegetation currently existing in the Lake exceeds historic levels. At the present time, the District estimates that approximately 2,000 acres of the Lake are covered with tussocks, and that due to the flaccid nature of the lake bottom, the tussocks are susceptible to becoming uprooted through fluctuating water levels, wind, and wave action. Therefore, there is a strong potential that much of the currently rooted vegetation will form tussocks. Tussocks first impacted the District’s ability to operate the control structure in July 2002. During this event, the canal became partially filled with tussocks. Because the blockage occurred during the rainy and hurricane seasons, the District undertook efforts to clear the canal of tussocks. District staff used mechanical equipment commonly called a cookie cutter to break up the tussocks and flush them downstream through the control structure. During this tussock event, the Lake's water levels rose briefly above the maximum desirable level of 98.5 feet msl and then fell back to within normal elevations. In late August 2002, approximately three weeks after the first tussock blockage event, a number of homeowners on the Lake, including Petitioner's wife, contacted District staff to advise that the water level of the Lake was rising and flooding their yards. A rise in water levels did not register on the District’s water level monitoring SCADA system. Visual observation of the Lake did reveal, however, that there was a significant difference between the water levels being experienced on the Lake and the water levels reported at the control structure via the SCADA system. During this tussock event, masses of tussocks had completely filled the 3,000-foot length of the canal all the way to the control structure and were jamming against the control structure gates. Tussocks had also formed a vegetation dam approximately 900 to 1,400 feet north of the control structure where they compacted and became lodged on the bottom of the canal, significantly impeding the flow of water. During this event, flows out of the Lake were significantly diminished to a fraction of what they should have been. The tussock dam caused the Lake's level to rise above the minimum flood elevation of 99.0 feet and flood Petitioner's yard. There was an approximately one to one and one-half foot difference in the water levels in the Lake and in the canal. In response to this disparity, the District installed a third water level elevation monitor at the northern end of the Lake, so that it can monitor any differences in water elevations between the Lake and the canal and be alerted in the event that a blockage occurs in the canal. To eliminate the tussock blockage and restore flow through the control structure, the District had to employ mechanical means to break up and remove the tussocks. At the control structure, a trac-hoe was initially used in an attempt to force tussocks through the control structure, as tussocks would not flow through the structure unassisted. A cookie cutter was also employed, but it became sucked into the control structure and was damaged and had to be removed with a crane and repaired. The cookie cutter proved ineffectual in addressing the tussock blockage problem. If the canal were to again become clogged with tussocks, any resulting blockage of flow from the Lake would cause water levels to rise, which would endanger public safety and welfare. Prior to the tussock blockages experienced in the summer and fall of 2002, problems with tussocks had never been experienced at the Lake. The magnitude of the tussock formation on the Lake is unique and has not been experienced elsewhere in the District. In 2002, the Department expended over $46,000.00 in contracting for mechanical equipment and for spraying herbicide on tussocks to respond to the tussock buildup on the Lake. Since their formation after the summer of 2002, tussocks have blocked Petitioner's access to his dock on several occasions, thereby preventing him from being able to take his boat out into the Lake or to return to the dock once out on the Lake. The potential for similar blockages to occur remains, regardless of whether a floating weed barrier is erected as proposed. The direction of the winds is a major factor in determining where and how many tussocks will stack up in front of anyone’s property along the Lake. Access to the canal could become blocked with tussocks at any time, depending upon how the wind blows. Breaking up tussock blockages and flushing tussocks through the control structure does not eliminate water resource problems for the District. Tussocks that are pushed through the control structure cause downstream problems requiring the District to expend resources to push the tussocks through and under low downstream bridges crossing the canal, as well as break up tussock blockages that form in downstream waters. In January 2003, tussocks again accumulated at the control structure in such volume as to require assistance in flushing through the control structure. As a result of the large volume of tussocks pushed through the control structure, a tussock blockage occurred at a downstream bridge crossing, for which the District had to use mechanical equipment to restore flow. During March 2003, tussocks flushed through the control structure created a jam downstream on the Peace River. The tussocks were jammed up in a bend in the river and were blocking navigational access to the river. An El Nino weather cycle is currently being experienced. Water levels, including the Lake's water level, are already at their maximum and the ground is saturated. Localized flooding events have occurred. A very active summer rainy season is anticipated, which will mean significant flood control operations for the District. As the summer season approaches, the District must keep the control structure open and operational, which requires that the canal be kept open and flowing. A floating weed barrier at the entrance to the canal would keep tussocks from clogging the canal and prevent problems affecting operation of the control structure, downstream tussock blockages, and possible flooding. The Project To address the problem of tussocks entering the canal and causing blockages or possible flooding, on September 11, 2002, the District applied to the Department for a Noticed General ERP under Rule 62-341.475(1)(a), Florida Administrative Code, to authorize the construction of a floating weed barrier at the entrance to the canal. On September 27, 2002, the Department issued its notice of intent to authorize the requested activity. The proposed barrier will be constructed in two sections arranged at approximately 90-degree angles to each other, with a twenty-foot opening between the sections to allow boat access to the canal. A schematic drawing of the barriers is found in District Exhibit 5 received in evidence. As originally proposed, the barrier would consist of a total of sixteen nine-inch diameter pilings driven twenty-one feet apart, with twenty-foot sections of floating foam-filled polyvinyl chloride pipe (pvc) connected to the pilings. Pilings will be marked with reflective tape and five of the pilings will have three-foot diamond-shaped reflective danger signs reading "DANGER PILE/FLOAT BARRIER" placed on their upstream and downstream sides. The pilings are twenty-five feet in length and will extend above the Lake's water level approximately twelve to fourteen feet. Since the District's submittal of the application and the Department's authorization notice, the District has located commercially manufactured floating booms, called "Tuffbooms," that, if authorized, will be installed in lieu of the foam-filled pvc pipes. Use of these booms reduces the number of pilings needed from sixteen to eight, and their bright orange color is more visible than pvc piping. All other aspects of the proposed activity remain the same. The change in material to be used in the construction of the proposed floating barrier does not present any water quality issues, nor does it affect the Department's determination that the proposed activity will have minimal or insignificant adverse impacts on the water resources. The staggered layout of the proposed floating weed barrier is intended to keep tussocks in the Lake, where they can remain subject to the winds, while providing boat access to the canal in such a manner that is more difficult for tussocks to enter the canal. The Department's Exemption Process The Department's Tampa District Office routinely approves around 800 projects each year under various exemptions authorized by statute or rule. One type of exemption is found in Section 373.406(6), Florida Statutes, referred to as the de minimus exemption, which allows the Department to exempt from regulation those activities that are determined will have only minimal or insignificant individual or cumulative adverse impacts on the water resources of the District. The Department is authorized to make this determination on a case-by-case basis. In determining whether an activity qualifies for a de minimus exemption from permitting, the Department looks for parallels to other specific statutory or rule exemptions and analyzes the proposed activity similarly in terms of its scope, construction methods, potential to create water quality impacts or impediments to navigation, and other factors, because these recognized exemptions are also deemed to have minimal or insignificant impacts to the water resources. There is no specific exemption for a floating weed barrier as proposed by the District, but the Department considers this type of project to be similar in scope and potential impacts to other specific activities that have been determined to have minimal or insignificant adverse impacts to the water resources, such as docks and other piling-supported structures, navigational aids, and buoy systems. In assessing whether a project is appropriate for the de minimus exemption, the Department also looks to the criteria for Noticed General ERPs for guidance in determining whether a proposed project will have minimal or insignificant adverse individual or cumulative impacts upon the water resources. Under Section 373.406(5), Florida Statutes, the Department may by rule establish general permits for activities that have, either singularly or cumulatively, minimal environmental impact. Chapter 62-341, Florida Administrative Code, sets forth the Noticed General ERPs established by the Department. Department Rule 62-341.475(1)(a), Florida Administrative Code (as does District Rule 40D-400.475(1)(a), Florida Administrative Code), allows noticed general permits for piling supported structures of less than 1,000 square feet over wetlands or other surface waters, which are not designated Outstanding Florida Waters. To qualify for a noticed general permit for such activity, an applicant must provide reasonable assurance that the proposed structure: Does not significantly impede navigation and does not entail the construction of a structure for the launching or mooring of a boat when navigational access to the structure does not currently exist; Does not cause a violation of state water quality standards; Does not impede the conveyance of a stream, river or other watercourse in a manner that would increase off-site flooding; Does not adversely impact aquatic or wetland dependent listed species; Does not cause the drainage of wetlands; and Is not located in, on or over a coral community, macro-marine algae or submerged grassbed community. Will the Project Impact Water Resources? The District’s proposed floating weed barrier will involve less than 7.1 square feet of impact to the water resources, which is significantly less impact in square footage to the water resources than is allowed by Rule 62- 341.475(1)(a), Florida Administrative Code, or occurs with other specified exempt projects. Best management practices will be used in the erection of the pilings and in the construction of the barriers. Pilings will be jetted into the lake bottom without need for any dredging or lake bottom removal. Installation of a floating weed barrier will not result in any significant detriment to existing conditions in the Lake or the canal. Installation of the proposed floating weed barrier will benefit the public interest and the water resources by allowing unimpeded operation of the control structure without risk of tussocks causing blockages and flooding. Installation of the proposed floating weed barrier will not have significant adverse impacts on fishing, boating, or recreational use of the Lake or canal. A blockage of the canal entrance by tussocks, or a tussock jam anywhere on the Lake, could occur under present conditions, and similar blockages have already occurred. The potential for tussocks to block the opening between the sections of the floating weed barrier is considered remote and of temporary duration, due to the potential for shifting winds. The District’s proposed floating weed barrier is a reasonable means of addressing the continuing potential for tussocks to interfere with operation of the control structure. Use of mechanical equipment such as a cookie cutter or harvester would not be an effective or economical means of addressing tussock blockages in the canal or preventing their occurrence and possible interference with operation of the control structure. Pushing tussocks through the control structure would not be an effective means of addressing the potential for tussocks to cause blockages and possible flooding. Merely pushing the material through the control structure moves the potential blockage problem downstream and does not alleviate the potential for tussocks to cause adverse impacts to the water resources of the District. Spraying tussocks with herbicides would not be an effective means of addressing tussock blockages due to the fact that, once treated, tussocks can take weeks to die and fall to the lake bottom. Floating tussocks are and will continue to be treated with herbicide sprays when found in the Lake to reduce the amount of tussocks. However, once tussocks enter the canal, spraying serves little benefit in preventing tussocks from causing blockages or other problems. Tussocks originate in the Lake and not in the canal. Tussocks in the Lake have had and likely will continue to have an impact on boating and recreational use of the Lake and canal, as evidenced by tussock blockages to Petitioner's dock. By confining the tussocks to the Lake, the potential for tussocks to impact boating and recreational use of the Lake will remain the same as current conditions, but the potential for tussocks to affect operation of the control structure and contribute to Lake flooding will be eliminated. Petitioner contends that the proposed floating weed barrier will impede navigation, either by itself or as a result of tussocks piling up in front of the barrier. The proposed barrier will be marked and visible through reflective tape and signage. The barrier does not create a navigational hazard and is not a significant impediment to access to the canal. Constructed in two sections, the barrier provides an opening that allows boat access to the canal. As noted above, the likelihood of tussocks piling up at the barrier and blocking the opening between the barrier sections is considered remote and temporary. Based upon the information provided by the District, the proposed floating weed barrier will not significantly impede navigation; will not cause a violation of state water quality standards; will not impede the conveyance of a stream, river, or other water course in a manner that would increase off-site flooding; will not adversely impact aquatic or wetland dependent listed species; and will not cause the drainage of wetlands. There is no evidence that the proposed activity is located in, on, or over a coral community, macro-marine algae, or submerged grassbed community or that it entails the construction of a structure for the launching or mooring of a boat for which navigational access does not currently exist. The proposed activity would have only minimal or insignificant individual or cumulative adverse impacts on the water resources of the District. As an activity that has minimal or insignificant adverse impacts on the water resources of the District, either individually or cumulatively, the District’s project qualifies for an exemption pursuant to Section 373.406(6), Florida Statutes, as well as a Noticed General ERP under Rule 62- 341.475(1)(a), Florida Administrative Code. The Department's exemption determination authorized the District’s floating weed barrier for one year, presumably so that the effectiveness of the barriers can be evaluated during that period of time. If they are effective, an extension or renewal of the authorization will be sought. If the tussocks problem becomes less acute, or the barriers do not achieve the desired purpose, they will be taken down. In contrast, Noticed General ERPs authorize a particular activity for five years. Other Contentions by Petitioner Petitioner has also contended that the proposed activity may violate a condition of the District's Corps of Engineers general permit by interfering with general navigation. As found earlier, however, the more credible evidence indicates otherwise. Moreover, it is presumed that this issue was considered by the Corps of Engineers prior to its approval of the project. In any event, that matter should be raised with the Corps of Engineers, and not with the Department. Finally, Mr. Lahey contends that since at least late 2002, the Lake has been free of a tussocks problem and therefore barriers are no longer needed. As noted above, however, blockages have occurred at the control structure and in the Peace River as recently as January and March 2003, and such blockages were the direct result of tussocks which originated in the Lake. Given the likelihood of a very active summer rainy season, it is essential that the canal be kept open so that the District can properly manage and control the water resources.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection issue a final order determining that the Southwest Florida Water Management District's proposed project qualifies for an exemption under Section 373.406(6), Florida Statutes; that authorization to use state-owned lands be given; and that the project is in compliance with the State Programmatic General Permit program. DONE AND ENTERED this _____ day of May, 2003, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this _____ day of May, 2003. COPIES FURNISHED: Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Bruce Lahey 5280 Waterwood Drive Bartow, Florida 33830-9766 Martha A. Moore, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34604-6899 Doreen Jane Irwin, Esquire 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
Findings Of Fact Petitioner has a lease on a 160-acre tract of land along the northern boundary of Palm Beach County which has been zoned and used for several years to mine rock used in local road building operations. This tract of land is surrounded on the east, south and west by some 1,000 acres of land owned by Intervenor, Vanguard Farms. The Vanguard Farms property is used to grow citrus and sugarcane. The geology of the area in the vicinity of this application is such that some three feet of Everglades top soil overlies the limestone. The land surface is about fifteen (15) feet NGVD and the water level table fluctuates from twelve (12) to fourteen (14) feet NGVD for the dry and wet seasons. The Vanguard Farms property, which surrounds Petitioner's property in Palm Beach County, is a wet area bordered on the west by Lake Okeechobee and on the east by high ground water elevation. The area has an excess of rainfall over evapotranspiration and excess water will always be generated. In order to render Vanguard Farms arable it is necessary to drain the property and pump excess water from the land. The existing rock pit is some 6.7 acres in area. In order to economically mine rock from this pit it is necessary to remove stable overburden and expose the limerock to provide a stable platform on which the mining equipment can be operated. Since the water table is generally above the top of this limerock, it is necessary to remove water from the pit to expose the rock to be quarried. During earlier operations water from the pit dewatering was pumped into a canal which flowed onto intervenor's property. In the application now under consideration, no water from the dewatering operation will be pumped off the 160 acres controlled by Petitioner. A 25-acre holding pond has been constructed on this site as well as a 9-acre overflow pond. The holding pond was constructed by piling the overburden, and possibly some limerock, in a rectangular shape some ten feet above the surface (25 feet NGVD). This material with which this 10-foot high levee is formed was excavated with a dragline and shaped with a tractor. Condition 28, of the conditions proposed by Respondent for the grant of this application, requires all dikes, levees and berms behind which water is to be retained to be inspected for structural adequacy. A report of such inspection and steps necessary to correct the deficiencies noted shall be submitted, and the report is to be signed and sealed by a Florida registered professional engineer. Perimeter ditches on the north, south and east sides of Petitioner's lands will intercept seepage from the retention pond and surface waters flowing onto this property. These perimeter ditches are connected to the rock pit to which such waters will flow. Water moving westward across the property will be intercepted by the rock pit. Without the rock pit excess water generated in this area will flow onto Vanguard's adjacent land. This condition will exist when the pit is not in operation. However, when the pit is in operation, the water will be retained on Petitioner's property by those limiting conditions requiring the maintenance of water level elevation in the perimeter ditch to be kept either equal to or below the water level elevation of Vanguard Farms. Under this condition, all water will be routed between the pit and retention pond. Conditions of the permit which Respondent proposes to issue include that the water level in the retention pond not exceed 18.5 feet NGVD, that the holding pond be interconnected with the overflow pond, that the water level in the perimeter ditches be maintained by use of a flashboard riser at 10.8 feet NGVD, that dewatering operations cease upon notification by District staff of any adjacent property owners experiencing water-related problems, and that a direct connection between holding pond and rock pit be established for emergency discharge of water from the holding pond back into the rock pit.
Findings Of Fact The subject applications request permits from the Central and Southern Florida Flood Control District (FCD) for the agricultural irrigation and drainage of 1,780 acres of citrus lands. Received into evidence without objection were the public notices of hearing appearing in The News Tribune, Fort Pierce, Florida, and The Stuart News, Stuart, Florida; the three permit applications submitted on behalf of Kay-One Grove, Ltd., and the Revised Staff Report of the FCD. The amount of water requested by the applications is 2,670 acre-feet per year with a maximum monthly withdrawal of 600 acre-feet. The Revised Staff Report, prepared by Doug Winter, a Civil Engineer with the Hydrology Division of the FCD, recommended an annual allocation of 1,619.8 acre-feet with a maximum monthly withdrawal of 574.8 acre-feet. This Report is attached hereto. Mr. Kenneth Harris, a consulting engineer for Kay-One Grove, Ltd., gave a summation of the applications and corrected page 1 of the Revised Staff Report, under the first paragraph of "A", to change "Township 37 South" to "Township 38 South". The summation was substantially the same as that set forth on pages 1 and 2 of the Revised Staff Report. The existing facilities were also represented to be as set forth in the FCD Report. Mr. Doug Winter testified that he evaluated the subject applications and prepared the Revised Staff Report, and testified as to its contents. As to the drainage aspects of the applications, Mr. Winter testified that there would be no adverse effect on the receiving water body since the drainage capacity of the applicant's land is within the FCD's limitations. As to the agricultural uses of the water, Mr. Winter used three criteria to determine the appropriate allocation. These three criteria were the adjusted basin yield, the supplemental crop requirement for citrus and the quantity requested by the applicant. The allocation is normally the lesser of these three quantities. It was determined that the adjusted basin yield was the limiting criteria and the amount of water available for annual allocation is 10.92 inches per acre per year for the C-23 basin, which equates over the applicant's 1,780 acres to be 1,619.8 acre-feet. The FCD uses this 10.92 figure for all allocations within the C-23 basin. The maximum monthly pumpage figure based on the amount of water which would be needed in the driest month to offset a 2 in 10 year drought, modified by an 80 percent application efficiency, was determined to be 3.875 inches par acre per month, or 574.8 acre-feet or 187.3 million gallons for the entire tract of 1,780 acres. This is in contrast to the 4.0 inches per acre maximum monthly withdrawal requested by the applicant, which would equate to 600 acre-feet. As to the use of ground water from three wells located on the property, Mr. Winter determined that the allocation would be the same as for the C-23 withdrawals since the recharge of these wells would be the same as the recharge of the surface water source. Mr. Winter then reiterated the conclusions and recommendations set forth in the Revised Staff Report. It was recommended that a water use permit be issued pursuant to Application Numbers 23238 and 22046 for an annual allocation of surface water and/or ground water in the amount of 1,619.8 acre-feet, which represents 10.92 inches per acre per year, with the condition that the maximum monthly withdrawal of surface water and ground water for the combination of the two not exceed 187.3 million gallons (which represents 3.875 inches per acre or 574 acre-feet) during times of adequate water level or moderate drought conditions. Should severe drought conditions occur, the FCD will issue an order requiring a reduction of water withdrawal rates based on a water shortage plan developed by the FCD. It was recommended that a surface water management permit be issued pursuant to Application No. 22039 for the operation of a system consisting of ditches, dikes, pumps and culverts as described in the application with the conditions set forth on page 11 of the Revised Staff Report. Finally, it was recommended that a right-of-way permit be issued authorizing a 48 inch culvert connection through the FCD's south right-of-way of C-23 adjacent to Project Culvert 15 and the use of Project Culvert 13. Mr. Harris then sought a clarification of the maximum monthly pumpage amount and was assured that the applicant could apply for emergency authorization of further withdrawals under the FCD's rules and regulations, provided extreme drought conditions were not existent. It was explained that the monthly quantity allowed here, the 3.875 inches, was based on reports of the average rainfall for the Fort Pierce area and the crop requirements. The Hearing Officer then asked Mr. Harris to explain his objections, if any, to the Revised Staff Report. Mr. Harris explained that the difference between the amount of water requested and that received in the Report is small, less than 10 percent. His only other objection was to the maximum allowable runoff figure. He would like this to be increased from the recommended 2.2 inches to 4 inches. It was explained that the allowable figure is based upon the maximum capacity of the canal. Mr. Harris stated that the applicant would probably make further application for additional run-off in the future.
Recommendation Based upon the above findings of fact and conclusions of law, it is recommended that the permits requested and the right-of-way permit be issued in accordance with the recommendations set forth on pages 9 through 11 of the attached Revised Staff Report. Respectfully submitted this 7th day of October, 1975, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. E.D. Holcomb, Jr. General Manager Kay-One Grove, Ltd. Post Office Box 1120 Fort Pierce, Florida 33450 Stephen A. Walker, Esquire Attorney for the Central and Southern Florida Flood Control District Post Office Box V West Palm Beach, Florida
The Issue The issue in this case is whether the South Florida Water Management District (SFWMD) should grant the application of Daniel Borislow, LLC, for an after-the-fact Environmental Resource Permit (ERP) and issue ERP 50-09272-P.
Findings Of Fact In 2007, Borislow bought 6.2 acres of land near the corner of Congress Avenue and Summit Boulevard in West Palm Beach. Borislow proceeded to create a soccer field on the property. The project required the addition of fill, the grading and leveling of the field and a shellrock driveway/parking area, and the installation of sod, an irrigation system, an exfiltration trench for water quality treatment, and lighting. Later in 2007, Borislow's activities came to the attention of SFWMD, which cited Borislow for conducting activities requiring an ERP without applying for and obtaining one. To resolve the enforcement action, Borislow agreed to apply for an after-the-fact ERP. Initially, SFWMD estimated primarily from aerial photography that 0.71 acres of wetlands were filled and impacted. During the permitting process, SFWMD's estimate of direct wetland impacts was reduced to 0.50 acres, and the mitigation required for direct and secondary2 wetland impacts was determined using the Wetland Rapid Assessment Procedure (WRAP).3 It was determined that Borislow's purchase of 0.2 of a freshwater herbaceous wetland credit in the Loxahatchee Mitigation Bank would offset the project's wetland impacts. SFWMD staff determined that all ERP criteria were met.4 Spots stipulated that there are no water quality issues, that no wetland-dependent endangered or threatened species of special concern have been observed at or in the area of the project site, and that the potential use of the site by such species is minimal.5 Spots contends: SFWMD underestimated the extent of impacted wetlands (and, therefore, the amount of mitigation did not offset the wetland impacts); reasonable assurance was not given that the project will not flood the Spots property to the north, in violation of permitting criteria in Florida Administrative Code6 Chapter 40E-4 and SFWMD's Basis of Review for ERPs (BOR); and reasonable assurance was not given that water storage and conveyance capabilities would not be adversely impacted, in violation of the permitting criteria in Rule Chapter 40E-4 and the C-51 basin compensating water storage requirements of Rule Chapter 40E-41, Part III. In normal permitting, existing wetlands are delineated in accordance with Rule Chapter 62-340. In this after-the-fact permit application, former wetlands had to be estimated. Spots reasonably contends that Borislow should not benefit from having filled wetlands without an ERP. But the evidence proved that the former wetlands on the Borislow property were properly estimated. Contrary to the contention of Spots, the wetlands were not estimated on the basis of a single aerial photograph. There were numerous aerial photographs over several years, which the experts could interpret and use to make a reasonable estimate of the extent of the former wetlands on the site. Ironically, while criticizing SFWMD's alleged reliance on a single aerial photograph to determine the extent of the former wetlands, Spots relied on a single aerial photograph to claim that the former wetlands on the Borislow property were deep and larger than 0.5. acres. The photograph appeared to show standing water only on the Borislow property, but it is possible that standing water on the Spots property was obscured by vegetation. In addition, it is impossible to determine the depth of the water from the aerial photograph, and there was no evidence as to the rainfall preceding the aerial photograph. Spots provided no other evidence to support its claim that more mitigation is needed to offset the wetland impacts. On the issue of flooding the Spots property, the evidence was clear that, contrary to the drawings in the ERP, the highest elevations in the northwest corner of the Borislow property are several feet south of the Borislow/Spots property line,7 and several feet higher than the elevation at the property line,8 causing surface water to flow down this slope from the Borislow property onto the Spots property. The evidence proved that no such "back-flow" existed in that location before the project. This "back-flow" can be prevented from crossing the property line by placing a swale or railroad tie or some other similar vertical retaining wall near or on the property line. Borislow has agreed to an additional ERP condition that this be done. The Borislow property is in sub-basin 30 of the C-51 basin. Spots and its engineering expert criticized the engineering calculations used by the experts for Borislow and SFWMD to provide reasonable assurance that the project did not result in a net decrease in water storage capacity in the basin. Spots contended that the calculations incorporated pre- development elevations taken from a 2005 aerial photograph. However, the more persuasive evidence was that the elevations used in the calculations actually came from survey information on surrounding properties, including the Spots property and Summit Boulevard, plus the control elevation in nearby Lake Worth Drainage District L-5 Canal. Elevations for the former wetlands on the Borislow property were assumed to be 10 feet NGVD9 based on the actual elevations of the existing wetlands on the Spots property. The testimony of the experts for Borislow and SFWMD as to the source of the elevations used in the calculations is accepted. The engineering calculations developed by Borislow's expert and accepted by SFWMD indicated a net increase in water storage capacity as a result of grading and leveling the property.10 The calculations compared pre-development and post- development storage capacity between the water table11 and the 100-year storm elevation, which was calculated to be 14.1 feet NGVD. The evidence did not adequately explain how grading and leveling the Borislow property would increase water storage; it would seem that no change in water storage would result. The engineering calculations assumed that no fill was deposited on the property. However, the evidence was that 150 to 300 truckloads of fill, each with 17 to 18 cubic yards, for a total of 2,625 to 5,250 cubic yards, were delivered to and placed on the property. If 300 truckloads were used, this would represent as much as an acre-foot of fill.12 Although the fill would have some water storage capacity, adding that much fill to the property logically would result in a net decrease in water storage capacity in the C-51 basin. This loss was not quantified, or compensated.13 Borislow testified that the fill was used to construct a 13-foot high, 330-foot long, 30-foot wide berm along the western perimeter of the property and another large berm along the northern and southern perimeters of the soccer field.14 But other evidence does not support Borislow's testimony. According to the drawings in the ERP, there are a total of 370 feet of berms, which are required to be a minimum of six inches high to maintain elevation 13.4 feet NGVD to contain the peak stage of a 10-year, 3-day design storm.15 Based on the ground level photographs in evidence, the berms do not appear to be anywhere near 13 feet high or 30 feet wide. In any event, the evidence does not prove that the fill deposited on the property was higher than 14.1 feet NGVD. Regardless of the exact dimension of the berms, it appears that the fill was deposited in a way that would result in a net decrease in water storage capacity in the C-51 basin. SFWMD seems to suggest in its PRO that the fill should be disregarded because there were no records to confirm the dates it was delivered, or the amounts delivered, and because it might have been delivered to an adjacent property.16 But the burden of proof was on Borislow. See Conclusion of Law 16, infra. There was no evidence to prove that Borislow had the fill deposited on an adjacent property. It is more likely that the fill was deposited on the Borislow property in large part to fill the former wetland, which probably was lower than 10 feet NGVD. Spots also charged that Borislow's project essentially obstructs the previous flow of surface water from the wetlands on the Spots property into the wetlands on the Borislow property, such that surface water now backs up on the Spots property. This appears to be true. Since it appears that the wetlands on the Borislow property were lower than the wetlands on the Spots property, grading and leveling would have that effect; adding fill would exacerbate the effect. Spots also argued that the evidence did not provide reasonable assurance on the ability of Borislow's system to recover from a 10-year, three-day storm event, so as to be able to again retain the surface water runoff from a successive storm of that magnitude and duration 12 days later. But the persuasive evidence was to the contrary, primarily due to the major drainage features in the vicinity--namely, the C-51 and the L-5 canals.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that SFWMD deny Borislow's after-the-fact ERP. DONE AND ENTERED this 10th day of August, 2010, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 2010.
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 a consumptive use permit for the quantities of water applied for should be granted.
Findings Of Fact Applicant Phillips Petroleum Company submitted application Number 7500103 for a consumptive use permit for an average daily withdrawal of 9,000,000 gallons of water a day to be withdrawn from the Florida Aquifer in DeSoto County, Florida. The application is for a new use and the withdrawal is for industrial use from four withdrawal points. The center of withdrawals will be located at Latitude 27 degrees, 14 minutes, 40 seconds north. Longitude 82 degrees, 2 minutes, 48 seconds west, in DeSoto County. Notice of the September 3, 1975 public hearing was published in a newspaper of general circulation, to wit: The Arcadian on August 14 and 21, 1975, pursuant to Section 373.146, Florida Statutes. Notice of the continuation of the hearing held at 10:30 a.m., December 11, 1974 were duly noticed. Sarasota County was granted leave to intervene as a party to the proceeding. Evidence was received and testimony was heard by all parties at the September 3, 1975 hearing and evidence was received and testimony was heard by she Applicant and Intervenor at the December 11, 1975 hearing, and although the attorneys for the Southwest Florida Water Management District took no further part in the December 11, 1975 hearing on the merits, depositions of the Southwest Florida Water Management District staff members, James Mann and Barbara Boatwright, were received. Phillips Petroleum Company owns approximately 15,200 acres of land in DeSoto County and Manatee County and proposes to commence a phosphate mining operation on that property using a total of 15 million gallons of water per day, 9,000,000 gallons per day (MGD) from DeSoto County and 6 million gallons per day (MGD) from Manatee County. This application for a permit is for the 9 million gallons of water to be withdrawn from an 8,700 acre parcel owned by the Applicant in DeSoto County, Florida. As such it presumptively seeks withdrawal and consumptive use of no more than the average annual water crop for this parcel. Pursuant to the water crop theory, the water crop for the 8,700 acres contro led by the Applicant in the Southwest Florida Water Management District is 8.7 million gallons of water per day. However, as shown by correspondence of a hydrologist from Southwest Florida Water Management District, a phosphate mining operation is only 90 percent consumptive and therefore the actual consumptive use is 7.8 million gallons per day and falls within the water crop theory assumption set forth in Rule 16J-2.11(3), F.A.C., infra. The statutory criteria for granting a consumptive use permit is found in Section 373.223, Florida Statutes, which states: "(1) To obtain a permit pursuant to the provisions of this chapter, the applicant must establish that the proposed use of water: Is a reasonable-beneficial use as defined in 474.019(5); and Will not interfere with any presently existing use of water; and Is consistent with the public interest. (2) The governing board of the department may authorize the holder of a use permit to transport and use ground or surface water beyond overlying land or outside the watershed from which it is taken if the governing board or department determines that such transport and use is consistent with the public interest." This statute has been supplemented by rules adopted by the Southwest Florida Water Management District and is found in Rule 16J-2.11, F.A.C.: "16J-2.11 Conditions for a Consumptive Use Permit. The intended consumptive use: Must be a reasonable, beneficial use. Must be consistent with the public interest. Will not interfere with any legal use of water existing at the time of the application. Issuance of a permit will be denied if the withdrawal of water: Will cause the rate of flow of a stream or other watercourse to be lowered below the minimum rate of flow established by the Board. Will cause the level of the potentiometric surface to be lowered below the regulatory level established by the Board. Will cause the level of the surface of water to be lowered below the minimum level established by the Board. Will significantly induce salt water encroachment. Will cause the water table to be lowered so that the lake stages or vegetation will be adversely and significantly affected on lands other than those owned, leased or otherwise controlled by the applicant. Issuance of a permit will be denied if the amount of water consumptively used will exceed the water crop of lands owned, leased, or otherwise controlled by the applicant. (Except where determined otherwise, the water crop [precipitation less evapotranspiration] throughout the District will be three hundred sixty-five thousand (365,000) gallons per year per acre.") The United States Geological Survey and the Florida Department of Environmental Relation have received data supplied to Southwest Florida Water Management District with the application for a consumptive use permit. Throughout the course of the hearing testimony was heard and evidence was received as to the "leakance value" of the parcel of land in question. "Leakance value" was defined as the moving of water from the surface down into the deeper aquifer. A geologist, Mr. Donald S. Kell, with the Department of Environmental Regulation, and who testified at the request of the Intervenor, Sarasota County, was of the opinion that insufficient data to determine leakance value in connection with the mining operation had been submitted and therefore further tests were needed. Mr. Jack Hickey of the United States Geological Survey was of the opinion that leakance value had not been obtained. The technical staff members of the Southwest Florida Water Management District were uncertain as to whether reliable leakance value had been obtained. It was the position of the Intervenor, Sarasota County, that due to the geological conditions of the proposed mining operation, this leakance value or surface recharge into the aquifer was insufficient and was not in conformity with Southwest Florida Water Management District's water crop theory assumption of 1,000 gallons per acre per day. Although evidence was presented on this point, it is the finding of this Hearing Officer that such evidence was insufficient to establish the basis of, any finding of fact or to rebut the assumption contained in the above referenced rule. The validity of this rule was not challenged and the presumption is that the rule is valid. The water used in the flotation process of applicants mining and benefication process would be recycled and reused in other areas of the phosphate operation. A letter of objection by Donald T. Yeats was examined and considered in this Order. The Applicant presented evidence that the construction of the facility would be in excess of $94 million expended over a period of 3 years, 61 percent of which would be spent in the region. 350 people would be employed at full production. Additional support jobs would employe from 200-400 people. Evidence was presented by the Applicant and was not rebutted by the Intervenor or by the Southwest Florida Water Management District as to each of the applicable conditions for a consumptive use permit in Chapter 16J-2.11, Rules of the Southwest Florida Water Management District, effectuating the provisions of Chapter 378, Florida Statutes.
Recommendation That the Southwest Florida Water Management District approve Phillips Petroleum Company's application for a consumptive use permit as requested, subject to the following terms and conditions: Prior to commencing withdrawals, Phillips Petroleum shall notify the District of said commencement; All production wells will be equipped with appropriate flow deters or other measuring devices; Phillips shall submit periodic reports of withdrawal to the District; and Phillips shall install appropriate observation wells or other monitoring facilities. DONE and ORDERED this 12th day of January, 1976. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Jacob D. Varn, Esquire Carlton, Fields, Ward, Emmanuel, Smith & Cutler 2000 Exchange Bank Building Tampa, Florida Jay T. Ahern, Esquire Southwest Florida Water Management District Post Office Box 457 Brooksville, Florida Richard E. Nelson, Esquire Richard L. Smith, Esquire Nelson, Payne, Hesse and Cyril 2070 Ringling Boulevard Sarasota, Florida
The Issue Whether a consumptive use permit for the quantities of water requested in the application should be granted.
Findings Of Fact Application 7500137 seeks an average daily withdrawal of 2.4 million gallons of water with maximum daily withdrawal not more than 2.88 million gallons from an existing well in order to process phosphate and reclaim land. This is an existing use for mining operations located southwest of Lakeland, Florida, on land consisting of 1531 acres. Notice was published in a newspaper of general circulation, to wit: The Lakeland Ledger, on November 11 & 18, 1975, pursuant to Section 373.146, Florida Statutes. The application and affidavit of publication were admitted into evidence without objection as Composite Exhibit 1, together with correspondence from James R. Brown, Vice President, Dagus Engineers, Inc., dated November 19, 1975 to the Southwest Florida Water Management District. No objections were received by the Water Management District as to the application. Mr. George Szell, hydrologist of the Water Management District testified that the application met the conditions for a consumptive use permit as set forth in Chapter 16J-2.11, Florida Administrative Code, except that the quantity of water requested to be withdrawn is 41.06 per cent over the maximum average daily withdrawal permitted under the water crop theory as set forth in Section 16J-2.11(3), F.A.C. However, the Water Management District witness recommended waiver of that provision since the mining operations will be concluded in several years and thereafter the water table and hydrologic conditions will return to normal. The Water District staff recommended approval of the application with the condition that a meter be installed on the well and that the applicant be required to take monthly readings thereof and submit quarterly reports of the readings to the District. The applicant's representative agreed to these conditions at the hearing.
Recommendation It is recommended that Application No. 7500137 submitted by Poseidon Mines, Inc., for a consumptive water use permit be granted on the condition that a meter be installed on the applicant's well and that monthly readings be taken and submitted quarterly by the applicant to the Southwest Florida Water Management District. It is further recommended that the Board of Governors of the Southwest Florida Water Management District, pursuant to Rule 16J-2.11(5), for good cause, grant an exception to the provisions of Rule 16J-2.11(3), as being consistent with the public interest. DONE and ENTERED this 19th day of January, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: J.T. Ahern, Staff Attorney Southwest Florida Water Management District P.O. Box 457 Brooksville, Florida 33512 Poseidon Mines, Inc. P.O. Box 5172 Bartow, Florida
The Issue The issue is whether CF Industries, Inc. (CF), has provided reasonable assurance that its proposed mining and reclamation of the South Pasture Extension (SPE) mine in Hardee County can be conducted in a manner that complies with applicable statutes and rules so that an Environmental Resource Permit (ERP), SPE conceptual reclamation plan (CRP), South Pasture Wetland Resource Permit (WRP) Modification, and South Pasture Conceptual Reclamation Plan Modification should be issued by the Department of Environmental Protection (Department).
Findings Of Fact The Parties CF is a Delaware corporation authorized to do business in the State of Florida and is the applicant in these proceedings. CF has applied for permits to conduct phosphate mining, reclamation, and associated activities on property in Hardee County known as the South Pasture Extension tract. These activities are referred to as the "Project," and the South Pasture Extension tract property is referred to as the "Project site." The Department is a state agency with jurisdiction over ERP permitting under Part IV, chapter 373, for phosphate mining activities, and jurisdiction over phosphate mining reclamation under Part II, chapter 378. Pursuant to that authority, the Department reviewed the ERP, CRP, WRP Modification, and CRP Modification applications for the Project. Petitioner is a Florida corporation in good standing, doing business in the State of Florida. Petitioner owns approximately 875 acres of land east of County Road 663 and immediately south of and adjacent to the Project site, which it leases to two affiliated companies, Florida Institute of Neurological Rehabilitation, Inc. (FINR I, Inc.) and FINR III, LLC. FINR I, Inc., operates the Florida Institute of Neurological Rehabilitation, which is a post-acute, state- licensed inpatient rehabilitation facility accredited by the Commission on Accreditation of Rehabilitation Facilities. It specializes in the treatment of children and adults who have sustained brain injury or some other form of neurologic trauma. The facility currently consists of 238 beds offering three levels of care and has approximately 135 to 140 inpatient clients, of which 115 reside on the property. The property has been used as a neurological rehabilitation center since 1986. Among other things, patients participate in organized and individual recreational activities on the property, including fishing, nature walks, baseball, and basketball games. Outdoor activities are critical to patient care, especially those with frontal lobe damage. The facility is only accessible by Vandolah Road (from the south) and that roadway serves as its only evacuation route. If the Project were to cause flooding on its property, as Petitioner alleges, it could reasonably be expected to prevent Petitioner from leasing its land to the related companies because the facility's employees or outside medical personnel could not enter the facility or evacuate the patients; it could interfere with the generators or electrical components required for patient care; it could deny the patients use of outdoor areas; and it could impede FINR I, Inc.'s ability to develop and expand facilities on the undeveloped part of the property. General Background Phosphorus is an essential element for plant and animal nutrition and is one of the primary nutrients necessary for plant growth. Phosphate rock is one, if not the only, known significant source of phosphorus, and there are no synthetic substitutes. Continued mining of phosphate rock is therefore critical to the agriculture industry as well as to the general population, both in the United States and globally. See § 378.202(1), Fla. Stat.("[t]he extraction of phosphate is important to the continued economic well-being of the state and to the needs of society"). CF has been mining in northwest Hardee County for decades. CF first began mining for phosphate in 1978 at what was then known as the North Pasture mine. Mining operations at the North Pasture mine concluded in the mid 1990s, and the lands associated with that mine have been completely reclaimed. Pursuant to local, state, and federal permits, CF relocated its beneficiation plant (which separates the phosphate ore matrix into phosphate rock, waste clay, and sand) to its present location south of State Road 62 in 1993, and began operation of its South Pasture mine in 1995. The South Pasture mine encompasses about 15,390 acres. After the startup of the South Pasture mine, CF acquired three additional land parcels totaling approximately 7,512.8 acres with mineable reserves contiguous to and immediately south of the South Pasture mine. These parcels are collectively referred to as the South Pasture Extension tract or the Project site. The Project site is bisected by County Road 663, which runs north and south through the Project site, generally in a southeasterly direction. Immediately to the west is Mosaic Fertilizer, LLC's (Mosaic's) permitted Ona Fort Green Extension and to the south is Mosaic's Ona mine, for which applications for mining approvals are currently pending regulatory approval. CF currently extracts phosphate rock at its South Pasture mine at a rate of 3.6 million tons per year. If the applications are approved, the Project will extend the life of the current South Pasture mine and beneficiation plant by ten years, permitting mining to continue at this same average rate through 2035. CF has an excellent record of compliance with respect to permits issued under chapters 373 and 378. Petitioner has raised no enforcement or compliance issues relative to CF's operation of its mining activities. In 1986, New Medico, Petitioner's predecessor in interest, established the neurological rehabilitation center on a 298-acre campus at the center of Petitioner's property and began accepting patients that same year. Petitioner actually acquired the Hardee County property in 1996, after mining activities began on the South Pasture mine. CF and Petitioner share a common boundary on three sides. The historic headwaters of Troublesome Creek are located within the Project site and along this common boundary, as well as within Petitioner's property, and they have been heavily ditched and degraded by agricultural activities. Troublesome Creek itself (as opposed to its headwaters) begins on the southeastern portion of the Project site, east of Petitioner's property, and has been reduced to a narrow, fairly incised conveyance flowing intermittently south-southeast to the Peace River. Since 1995, when CF began mining operations at its South Pasture mine, and until the present time when Petitioner filed its Petition challenging CF's Project, the parties' respective operations have co-existed and are currently approximately a half mile apart. Project Logistics Over the last five years CF has relied upon a team of experts from several different consulting firms and disciplines to assist it with preparing and supporting its application. CF will integrate materials handling on both the existing South Pasture mine and the Project site. Specifically, mining and reclamation operations at the Project site will employ the same methods currently approved by the Department for use at the South Pasture mine, and will utilize the existing operational facilities and workforce. The existing beneficiation plant at the South Pasture mine will separate the phosphate ore matrix mined at the Project site into phosphate rock, sand, and clay. Waste clays from the Project will be disposed of within existing clay settling areas (CSAs) at the South Pasture mine and new CSAs proposed for the Project site. The Project's mine water recirculation system will also be integrated with the South Pasture mine's recirculation system. As it has done at the South Pasture mine, which is located only one-half mile north of Petitioner's property, CF must install a perimeter ditch and berm system (which includes a recharge ditch system) along the Project site's boundaries prior to any clearing to contain Project water within the CF site and to protect adjacent properties during mining operations. The ditch and berm system is installed approximately six months to one year prior to the extraction of material within a particular mine block. Pursuant to Specific Condition 14 of the ERP, the recharge ditch system, which serves to provide groundwater recharge to preserved and off-site wetlands and surface waters during mining to avoid potential adverse impacts, must be constructed before mining activities can occur within 1,800 feet of any preserve or property boundary. The recharge ditch systems in each mine block adjacent to such boundaries will be designed based upon additional site-specific hydrogeologic testing and analysis and installed prior to mining after the Department has approved the final design. Specific Condition 14 also requires development and implementation of an Environmental Management Plan consistent with the requirements of that condition and with Appendix 14 of the ERP at least four years prior to mining of the Project site. Pursuant to this condition, CF must also conduct detailed baseline monitoring for at least four years prior to mining and conduct continuous during-mining monitoring, visual inspections, water table and stream flow analysis, and if necessary, implement hydrologic mitigative or remedial measures, to ensure that the recharge systems function as intended to protect unmined wetlands and other surface waters from adverse impacts by mining operations. These activities must continue until the area within 1,800 feet of the preserve or property boundary is backfilled and CF has documented that subsurface flows have achieved conditions hydrologically equivalent to those described in the Integrated Modeling Report (IMR) prepared for the Project. CF's mine plan indicates the sequence of mining on the Project site. Preparatory mining activities are scheduled to begin in 2017, with actual mining scheduled to begin in 2019, but are not scheduled to begin adjacent to Petitioner's property until 2027, progressing along CF's shared property boundary with Petitioner in a counterclockwise fashion, and west of County Road 663 through 2031. Piezometer wells and rainfall gauges must be installed along all preserves and property boundaries at least four years prior to initiating mining of the Project site, allowing for collection of an ample amount of baseline reference data before mining begins adjacent to Petitioner's property. As mining progresses within each mine block, backfilling with sand tailings and initial revegetation will follow mining almost immediately (three months) after mining, including in the vicinity of Petitioner's property. As each mine block is backfilled, within approximately three to five years after mining, the entire area will be completely backfilled, contoured, and revegetated. Within the same approximate timeframe, once the entire area is stabilized and following one year of water quality monitoring, the ditch and berm system will be dismantled and the area reconnected to its watershed. CF has sufficient water available from multiple water inputs, including very clean water from its Aquifer Recharge and Recovery Project (ARRP) on the South Pasture mine to support the proposed mining and reclamation activities on the Project site. CF will also construct a reroute ditch adjacent to Petitioner's property. The purpose of the reroute ditch is to reroute existing surface water flow in the Troublesome Creek headwater ditches off of Petitioner's property, around active mining operations, and then into Troublesome Creek as it exits the Project site to the southeast. To specifically address Petitioner's concerns regarding flooding, CF submitted conceptual designs for a reroute ditch to the Department prior to final hearing in this matter, and the Department modified its ERP accordingly. Like the recharge system, the final design of the reroute must be based on an additional site-specific assessment conducted pursuant to the ERP, prior to actually severing flow. CF's South Pasture mine has two permitted National Pollutant Discharge Elimination System (NPDES) outfalls located on Shirttail Branch and Doe Branch, both of which flow into Payne Creek, which is a tributary to the Peace River. While these existing NPDES outfalls will continue to meet all of CF's discharge needs for Project mining operations due to integration of the mine recirculation system, CF may obtain additional outfalls on the Project site to provide flexibility to supplement stream flows during mining in preserved and off-site streams. One such potential discharge point was identified on the northern boundary at Petitioner's property, as "S-1." Petitioner's Allegations Conflicting testimony was presented by the parties on the issues raised by Petitioner. These conflicts have been resolved in Respondents' favor, who submitted the more credible and persuasive evidence. Where a specific allegation is not addressed in this Recommended Order, it has been considered and found to be without merit. Petitioner alleges, on the one hand, that the Project will either cause flooding on its property so as to adversely impact its and its lessees' use and enjoyment of the property, and, on the other, will cause dewatering of its property so as to adversely affect its wetlands and other water resources. While the undersigned did grant CF's Motion to Strike, Petitioner was permitted to pursue its water resource and environmental impact issues and expressed its concerns regarding the Project's impact on Petitioner's property and development potential as well as on the health, safety, and welfare of residents or inhabitants of Petitioner's property. These concerns were addressed by Steve Freeley, FINR II, Inc.'s former director of marketing and now a Vice President, and Dr. Jorge Villalba, FINR I, Inc.'s medical director. Mr. Freeley, a fact witness, summarized Petitioner's concerns, as he understood them, to be the Project's potential for flooding, dewatering, and well contamination on Petitioner's property, particularly how these events might affect Petitioner's pocketbook and the future development potential of Petitioner's property. However, Mr. Freeley admitted that he had no knowledge of the Project application or supporting materials, had never been to the South Pasture mine, and had no familiarity with phosphate mining. Dr. Villalba testified primarily on behalf of FINR I, Inc., patients at the rehabilitation facility, in particular his concerns regarding his patients' specific sensitivity to environmental stimuli. Dr. Villalba has no legal affiliation or association with Petitioner, being solely an employee of, and the medical director for, FINR I, Inc. Dr. Villalba also testified regarding the need to internally relocate some patients due to flooding caused by hurricanes in 2004. More specifically, Dr. Villalba testified that in 2004 residential cabins on-site experienced water levels rising up to the steps of the elevated residential facilities. Like Mr. Freeley, he admitted he had no knowledge of the application materials, phosphate mining, CF's South Pasture mine operations, or the materials submitted in support of the proposed agency action. For all of the following reasons, the adverse environmental and water resource-related concerns of Petitioner are determined to be without merit and are therefore not credited. Analysis of Hydrology CF and the Department thoroughly investigated the Project's potential for causing adverse flooding and dewatering impacts on adjacent properties. Event-based stormwater runoff modeling provided reasonable assurance that peak discharge rates and outflow volumes at exit points from the Project site under post- reclamation conditions would not cause adverse offsite flood impacts. The results of CF's flood modeling are summarized in a flood modeling report (FMR). The FMR demonstrated that the proposed post-reclamation land use, topography, and soil distributions will not result in any adverse changes in the peak discharge comparison to pre-mining conditions for flood flows; peak flood values will be maintained or improved by the reclamation design; and post-reclamation peak flood values along Petitioner's shared property boundary with CF will be lower than pre-mining conditions. Three standard rainfall events were evaluated: (a) the mean annual 2.33-year, 24-hour event, (b) the 25-year, 24-hour event, and (c) the 100-year, 24-hour event. These storm events are part of a standard suite of engineering design storms that the Department commonly relies upon to assess pre-mining versus post-reclamation flooding. CF utilized a one-dimensional surface water computer model, MIKE 11, to prepare the flood modeling report. MIKE 11 uses the Natural Resources Conservation Service's (formerly the United States Soil Conservation Service's) TR-55 based approach and applies a 1-D hydraulics component that represents Florida landscape conditions well. This modeling, and the resultant FMR, which is a part of the application, were not contested. It demonstrated that the proposed post-reclamation condition will not result in any adverse flooding. In fact, local flood hazards will likely be reduced due to the lowering of peak flood values. CF also developed an integrated surface and groundwater model for the Project. Integrated modeling assesses long-term hydrologic conditions to ensure that the Project will result in hydropatterns that restore and sustain reclaimed wetlands and waterbodies on the Project site. The MIKE SHE model was used to perform the hydrologic simulations; the modeling results are contained in CF's IMR, as part of the application. It was also used to establish the normal seasonal high and seasonal low ranges for wetlands and surface waters that were used in other portions of the application, such as the Recharge Modeling Report (RMR). There was no objection to the use of this model or its results. The IMR indicates that the proposed reclamation will restore on-site wetland functions, promote the maturation of on-site wetlands, and result in an overall water balance that maintains or improves regional hydrology. Off-site stream flows to Troublesome Creek will be enhanced, which will improve that system's capacity to support aquatic fauna. During-Mining Hydrologic Analysis In addition to performing pre-mining and post- reclamation condition hydrologic analyses, CF and the Department evaluated the Project's potential for causing adverse flooding and dewatering impacts on adjacent properties during mining. The existence of several factors inherent to the mining process, discussed below, typically makes during-mining flood event modeling unnecessary to provide reasonable assurances. See Lee Cnty. v. Mosaic Fertilizer, LLC, Case No. 08-3886, 2008 Fla. ENV LEXIS 171 (Fla. DOAH Dec. 18, 2008), adopted, OGC Case No. 08- 1852, 2009 Fla. ENV LEXIS 14 (Fla. DEP Jan. 30, 2009). The application contains during-mining water balance analyses that specifically evaluated the biological integrity of on-site and off-site preserved areas, streams, and wetlands during mining and after reclamation. CF prepared a mine and production plan (MPP) describing general mine planning and scheduling, as well as its proposed integration with the South Pasture mine, that contained an operational during-mining water balance showing recirculation system inputs and outflows. The primary sources of water input into the mine recirculation system for the Project will continue to be direct rainfall capture, groundwater from existing permitted wells, water content of the mined matrix and overburden, and reclaimed water from the City of Wauchula. The primary sources of water consumption will be evapotranspiration and net waste clay entrainment; CF recycles and reuses 95 percent of its water. As described in the MPP, the primary sources of water discharge will be through its existing two (and possibly additional) permitted NPDES outfalls. There will be no substantial change in the during- mining water balance as a result of the extension of mining into the Project site. Moreover, the application, past practices and experience, and evidence presented at hearing all indicate that CF has more than sufficient amount of water available to conduct the Project while simultaneously maintaining or improving the biological integrity of downstream systems. CF has the demonstrated ability to manage large amounts of water within its mine recirculation system and store or discharge water as required to maintain downstream flows or reduce flooding potential. During mining, CF can either discharge stormwater treated to meet state water quality standards, or store it in its recirculation system, depending on downstream conditions. Thus, even without a reroute ditch, the risk of adverse flooding during mining is minimal. CF has never caused any flooding of neighboring property in over 30 years of mining. As noted earlier, upon construction of the perimeter ditch and berm system along its shared property boundary with Petitioner, CF will reroute existing water flow around active mining operations and the berm system to reconnect flow with Troublesome Creek. CF's expert witness testified that, from an engineering perspective, a reroute ditch is not difficult to design or construct, and that CF has successfully constructed similar reroutes in the past and without causing flooding. Nevertheless, in light of Petitioner's concerns, CF directed its consultants to model the potential impacts from a reroute ditch to assist in sizing the reroute ditch and associated structures. The design objective was to ensure that no off-site increases in peak flows or stages would occur during mining as compared to existing conditions as a result of the Project during high rainfall events. CF and Petitioner's consultants used the Interconnected Pond Routing (ICPR) model to evaluate the reroute ditch. CF analyzed the 25-year, 24-hour and the 100-year, 24-hour storm events. The model indicated that in many areas, where the presence or absence of a reroute ditch would not make a significant difference, water levels would remain unchanged, and that in some areas closest to the proposed reroute ditch, potential flood levels would actually be decreased by two-tenths of a foot. This would actually reduce the likelihood of localized flooding during significant storms over existing conditions, which has posed a concern to Dr. Villalba for his patients' safety during prior hurricane events. The modeling results were summarized in a Troublesome Creek Reroute Ditch Modeling and Conceptual Design Report (RDMR). Dr. John Kiefer, the co-author of the RDMR, as well as Dr. Owete, a Department expert, opined that the Project, including implementation of the proposed reroute ditch, would not cause adverse flooding or water quantity impacts on Petitioner's property during mining. Dr. Kiefer subsequently identified and corrected some minor errors in the RDMR. These changes had no effect on his ultimate opinion or this finding. According to Dr. Owete, the modeling was not necessary to provide the requisite reasonable assurances. In fact, the reroute ditch design drawings themselves were not requested by the Department to provide reasonable assurances, but were offered by CF as additional assurances in light of the concerns raised by Petitioner during these proceedings. This testimony was echoed by Dr. Kiefer, who testified regarding the various intrinsic protections against during-mining flooding that are inherent to the Project. Further, the record establishes that the design and the model are very conservative. The 100-year event, for which the reroute ditch was designed, has only a one percent likelihood of occurring in any given year within a 100-year period. The RDMR recommends that additional modeling be conducted immediately prior to implementation to confirm the design. The ERP specifically requires that the RDMR be implemented. This is similar to conditions throughout the ERP that require additional data gathering modeling or other analysis and revised designs based on this additional analysis. The ERP can provide for post-permit activities to be performed as part of reasonable assurances. See Fla. Admin. Code R. 62- 4.070(3). Petitioner's expert, Mr. Robert Burleson, opined that the Project will cause flooding of Petitioner's property during mining due to the construction of the perimeter berm. However, Mr. Burleson used a starting water elevation on Petitioner's property to run his model that was already commensurate with a 100-year flood elevation and then added a 100-year event to that elevation. Mr. Burleson's model also assumed that no reroute ditch would be constructed, and additionally assumed artificially high surface water conditions caused by the recharge system which, conversely, Petitioner's expert, Mr. Davis, opined would not prevent dewatering. Therefore, his opinion on flooding is not credited. Mr. Burleson also opined that flooding would nonetheless occur because of the construction of the perimeter berm across Lettis Creek headwater wetlands, notwithstanding the fact that there is no "stream" at this location, the landscape is relatively flat, and County Road 663 and the railroad line would lie between Petitioner's property and the perimeter berm. However, Mr. Burleson's modeling assumed that County-maintained culverts between the properties would be blocked during mining. Even under this assumed condition, his modeling showed only a slight increase in stage durations during significant 25-year and 100-year events. However, CF has committed to maintain flow from Petitioner's property onto the Project site at Lettis Creek through existing culverts under County Road 663. Mr. Burleson also testified that in his view flooding occurs "if there's an increase in water levels above what has historically or naturally [occurred] for a given condition." Tr. 522. However, Mr. Burleson did not know whether the FINR property had ever been inundated in the way inundation was depicted in the figures he provided and did not know whether the inundation in the figures he provided could be a natural condition for the property. Thus, Mr. Burleson could not testify, whether historically or naturally, the amount of water depicted on his figures would occur. It was established that the historic headwaters in this area have been heavily ditched and altered from their historic or natural condition. CF assessed the potential that the reroute ditch could result in dewatering during non-flood events. To address this concern, CF designed the reroute ditch with a bottom elevation that would match the bottom elevation of the existing ditch, meaning the water table will intersect the reroute ditch in the same manner it currently intersects the Troublesome Creek ditch. Adjacent to Wetland 10E-40 in the southeast corner between Petitioner's property and the Project property, however, the reroute ditch received special design consideration because the reroute ditch bottom will be below the bottom of the wetland at that location. There, the reroute ditch will be armored, an overland weir will regulate flow, and an impermeable geotextile liner will be installed. Several intrinsic factors, relating to both the reroute ditch design and the overall Project design, provide further assurances that adverse flooding will not occur on Petitioner's property during mining. Once CF constructs the perimeter ditch and berm system, the area of the drainage basin contributing flow to Petitioner's property will be reduced by approximately one-half, resulting in significantly less water flowing onto Petitioner's property during flood events because the ditch and berm system will divert stormwater that normally reports to Troublesome Creek into CF's recirculation system. The conveyance capacity of the reroute ditch will be equivalent to or greater than that of the existing ditch that it would replace. The reroute ditch will be installed in concert with the ditch and berm system, which as noted above will reduce peak flood flows in Troublesome Creek, meaning a lower tailwater condition can be expected in Troublesome Creek downstream of its confluence with the reroute ditch. CF thoroughly assessed the ability of the recharge ditch to maintain recharge to wetlands and adjacent properties during active mining of the Project. Specifically, CF evaluated the seepage characteristics of the areas scheduled to be mined and provided site-specific recommendations regarding recharge system design in variable subsurface conditions. CF evaluated the efficacy of treatment options that might be necessary to incorporate in the recharge ditch design in certain subsurface conditions to prevent potential adverse impacts. The goal of the recharge ditch design was to maintain the water table during mining operations, within the normal range of seasonal high and seasonal low water table elevations along preserve and property boundaries, including Petitioner's property. The normal seasonal range used to develop the RMR was obtained from the IMR analysis. In order to appropriately evaluate subsurface permeabilities at the Project site, CF's consultants first engaged in a rigorous geotechnical exploration program: they reviewed available prospect borings and design reports; they developed subsurface profiles along wetland and property boundaries within the study areas based on prospect boring data; they completed four Standard Penetration Test borings at locations selected based on the subsurface profiles; they installed a deep, intermediate, and shallow piezometer at each of the borehole locations; and they completed in-situ hydraulic conductivity tests in each of them. This information resulted in a detailed subsurface profile that ran along the entire border of the mining areas and identified a range of subsurface conditions site-wide, with both low and high permeability values, consistent with regional data and Petitioner's findings. Next, CF's consultant developed 14 design sections, including cross sections at each of the locations specifically requested by the Department, two adjacent to Petitioner's property, and conducted seepage analyses for each. For the two design sections nearest to Petitioner's property, no continuous layer of highly-permeable limestone or other high permeability strata were encountered that were reasonably likely to affect performance of the recharge ditch, and thus no particular "add on" hydrologic mitigative measures to the recharge ditch appear reasonably likely to be needed. Nonetheless, the efficacy of those additional measures in higher permeability soils was fully evaluated. Results of the seepage analyses on the 14 design cross sections are summarized in the RMR. The RMR concludes that, in most mine areas, sufficient recharge will be provided to preserved wetlands and adjacent properties during mining using a recharge ditch designed as proposed in the RMR. Nine of the 14 cross sections did not have a continuous highly permeable limestone layer, including the two near Petitioner's property; and a recharge ditch with the water level maintained at ground level was sufficient to maintain an adequate groundwater level in off-site and preserved wetlands at these nine cross sections, to the center of the wetland. Only five of the 14 design cross sections contained a continuous, permeable limestone layer within the matrix layer. For areas where such high permeability layers do exist, additional hydrologic mitigative measures were recommended in addition to the recharge ditch, such as recharge wells, permeable trenches, localized grouting, and soil-bentonite cutoff walls, in order to maintain groundwater levels. In the event a permeable limestone layer is encountered within the matrix layer, the RMR concludes that the utilization of recharge wells, sand trenches, or other treatment options will be effective in maintaining the normal range of seasonal groundwater levels. Pursuant to the RMR recommendations, decisions regarding which specific mitigative measure is appropriate to use to address a specific subsurface condition will be made based upon more detailed, site-specific data and design modifications determined through field investigations, to include additional test borings, piezometers, field measurements of hydraulic conductivities, and additional seepage analyses. These additional measures are required by the ERP conditions and the final design must be approved by the Department. While the RMR did not assume the existence of a reroute ditch, Mr. Beriswill, a professional engineer, subsequently evaluated the potential impact of a reroute ditch on the RMR's recommendations and conclusions. Based upon this subsequent evaluation, Mr. Beriswill concluded that no significant changes in the design of the recharge ditch were necessary to account for the ditch, although he and other consultants did agree that addition of an impermeable geotextile liner to a portion of the reroute ditch would reduce the potential for dewatering adjacent to Wetland 10E-40 and should be implemented. The RMR also evaluated the stability of the mine cut face seal embankment (construction of which is common in the industry) and provided recommendations to maintain adequate and stable slopes during mining activities. Based upon these analyses, CF's consultants recommended a one-foot (vertical) to five-foot (horizontal) (1:5) slope to ensure a 1.3 factor of safety for slope stability, which is within industry standards. Water Quality Impacts In addition to the above analyses, CF and the Department also thoroughly evaluated potential on-site and off- site water quality issues associated with the Project. As noted earlier, discharges will occur only through permitted NPDES outfalls. Additional water quality protection for adjacent undisturbed surface waters and wetlands will be provided by the perimeter ditch and berm systems and other proposed best management practices (BMPs), such as silt fences and stormwater collection systems. During mining and reclamation, these practices will preclude uncontrolled releases of water to adjacent unmined and downstream areas. There are also detailed requirements in the ERP for monitoring water quality during mining and reclamation activities. All of these measures will be effective in preventing violations of water quality standards, and will ensure that the water quality of preserved on-site systems will be protected during mining activities at the Project site. A Stormwater Pollution Prevention Plan (SPPP) was prepared to identify BMPs and controls for the Project during land preparation, mining, backfilling, and reclamation. The SPPP also incorporates by reference other documents already in place on the South Pasture mine pursuant to CF's NPDES permit for the South Pasture mine. Among these documents are a Best Management Practices/Pollution/Prevention (BMP3) Plan that generally describes BMPs for waste management, spill reporting and response, and other specific measures to prevent pollution, and a memorandum of agreement (MOA) between CF and the Department that describes general design and construction BMPs. The MOA has also been attached to the ERP. The BMP3 Plan, which is updated annually, must be maintained on-site during mining operations. Using these measures at the South Pasture mine, CF has never had any issues with stormwater discharges causing water quality violations. Petitioner failed to present any competent substantial evidence that the Project will cause adverse water quality impacts during mining. Its expert, Mr. Robert Burleson, opined only that certain requirements specified for generic stormwater permits associated with construction activities were missing from the SPPP. However, it is unclear whether he reviewed or considered the sufficiency of the MOA or BMP3 Plan, and these contain specific BMPs to be utilized for the Project's stormwater. Additionally, Mr. Burleson admitted that he had no familiarity with preparing SPPPs for industrial facilities with NPDES permits. Dr. Durbin, a CF expert, who has such experience and reviewed all of these materials as well as South Pasture mine water quality data, opined that implementation of these practices and the existence of the NPDES permit ensure that water quality of downstream systems will be protected during mining and that no adverse water quality impacts will occur. The application is therefore consistent with applicable ERP permitting requirements. The generic stormwater permit proffered by Petitioner does not apply, and is not available, to facilities like CF that are required to obtain individual NPDES permits that address stormwater discharges. See Fla. Admin. Code R. 62-620.100(2). Ecological Issues The level of detail and analysis provided by CF in its application to the Department for the ERP, CRP, and WRP and CRP Modifications is more than adequate. Indeed, CF provided substantially more baseline information in terms of existing site conditions, wetland conditions, and wildlife information than is provided in typical ERPs. CF expert witnesses Dr. Kiefer and Dr. Durbin both testified as to the local and regional ecological, hydrological, and wildlife benefits expected to result from the proposed reclamation. This testimony was not disputed. Pursuant to section 373.414(6)(b), wetlands reclamation activities for phosphate mining undertaken pursuant to chapter 378 are considered appropriate mitigation if they maintain or improve the water quality and the function of the biological systems present at the site prior to the commencement of mining activities. CF's reclamation achieves that mitigation goal. It provides for an acre-for-acre, type-for-type, and foot-for-foot restoration, as appropriate, of the wetlands and other surface waters proposed for impact on the Project site. The application indicates that the proposed reclamation will restore on-site wetland functions and promote the maturation of on-site wetlands. Specifically, CF is proposing to enhance 126 acres of wetlands and 57 acres of uplands, create approximately 1,711 acres of wetlands and other surface waters, and grant perpetual conservation easements to permanently preserve 1,095 acres of unmined (avoided) and 1,789 acres of reclaimed habitat, including wetlands, streams, and associated native upland habitat in the Brushy Creek, Lettis Creek, and Troublesome Creek corridors on the Project. In addition, CF will grant a perpetual conservation easement to permanently preserve an additional 915 acres of unmined wetland and native upland habitat associated with the Horse Creek and Payne Creek corridors in the South Pasture mine. Ultimately, the Project will represent a substantial improvement in the Troublesome Creek headwater system, which has been degraded by ditching. Based upon the uniform mitigation assessment method analysis, the proposed mitigation plan will more than offset proposed impacts, resulting in a net increase in wetland functions on the Project site. While mining activity is temporary, this "surplus" improvement will be permanent. CF considered the potential impacts to off-site wetlands from the Project both during mining and after reclamation, particularly those wetlands that straddle CF's shared property boundary with Petitioner. Wetlands on Petitioner's property are similar to nearby wetlands on the Project site, in that historically they have been impacted by agricultural activities, including ditching. None of Petitioner's experts provided testimony of adverse impacts to wetlands or surface waters that would be reasonably likely to occur as a result of the Project. In contrast, Dr. Durbin testified that the wetlands on Petitioner's property are degraded and dehydrated due to the prevalence of agricultural alterations and that a modicum of additional water might actually benefit them. The application indicates that the proposed reclamation will result in an overall water balance that is consistent and compatible with the region's surface and sub- surface hydrology, and the combined groundwater and surface water outflow volumes from the Project site will be similar to pre-mining conditions. As noted earlier, the proposed recharge ditch system will maintain off-site water table levels within the normal range of seasonal high and seasonal low values, which is the range of fluctuation the water table level currently experiences pursuant to the IMR. Therefore, no dewatering will occur that will have an adverse ecological effect on Petitioner's wetlands. Dr. Durbin and Dr. Kiefer opined that the improvement in ecological conditions post-reclamation on the Project site can reasonably be expected to improve the ecological condition of the immediately adjacent wetlands on Petitioner's property. Petitioner's expert, Mr. Davis, opined that CF failed to provide reasonable assurances that the Project would not cause dewatering of wetlands on Petitioner's property. He presented model results using those high permeabilities that purported to show that, at some distance proximate to the property boundary, some drawdown would occur with maximum predicted drawdown approximately 80 feet or less from the property boundary. However, Mr. Davis selected the high end of the range of the subsurface permeabilities estimated in the RMR and assumed they were present continuously along the property boundary. Although the highly permeable conditions are not continuously present along the boundary line of Petitioner's property, measures to address those conditions have been identified and recommended, should they occur. Moreover, Mr. Davis' modeling did not use the existing conditions established in the IMR as a baseline and did not evaluate any of the mitigative options recommended in the RMR for use if high permeability layers are encountered. Rather, his modeling looked at only two scenarios that were not recommended in the RMR in such cases, namely, the recharge ditch alone, and charging the recharge ditch five feet above ground surface. He admitted that the options recommended in the RMR for high permeability subsurface conditions were all widely-used options capable of being implemented. Mr. Davis' assertions regarding the potential for a half-foot of drawdown near the property line are based on a series of assumptions and conditions which are not supported by competent substantial evidence. Therefore, his testimony does not rebut the prima facie case of CF and the Department regarding reasonable assurances and is not credited. Mr. Palmer criticized the adequacy of the monitoring contained in Specific Condition 14. However, he admitted that monitoring of the proposed piezometers would detect any water table changes, and the ERP requires comparison against the baseline data as well as long-term rainfall records. He also acknowledged that he reviewed only a portion of the condition. Thus, Mr. Palmer's criticisms are not credited. CF's reclamation also consists of a Stream Restoration Plan (SRP). Implementation of the SRP will result in replacing lower-functioning streams and lotic systems, like the ditched headwaters of Troublesome Creek, with higher quality systems post-mining pursuant to state reclamation requirements. Dr. Kiefer opined that this is reasonably likely to result in both localized and regional improvements to Troublesome Creek by restoring its headwaters to a more natural condition. This evidence was not refuted. Petitioner provided no testimony regarding the ecological effect of the Project on Petitioner's wetlands and water resources. FINR witnesses Burleson, Davis, and Palmer claimed no expertise as ecologists. In fact, Mr. Davis admitted that he normally provides his modeling reports to others with expertise regarding whether a modeled water level drop could actually be expected to cause harm. This was not done here. There was no credible testimony that adverse environmental or water resource impacts would result to Petitioner's property from the Project. Materials CF has analyzed whether it will have sufficient materials available to it to accomplish the objectives within the CRP, and sufficient capacity in existing South Pasture mine and proposed Project site CSAs to dispose of waste clays generated by the phosphate matrix processing. For this purpose CF prepared a Life of Mine Backfill Plan (LOMBP). The LOMBP describes how on-site materials will be utilized by CF, during both mining and reclamation activities, over the life of the mine. Based upon CF's calculations as reflected in the LOMBP, information contained in the MPP, and testimony from CF's expert witness, CF will have sufficient materials to achieve its mining and reclamation objectives, and sufficient capacity to dispose of waste clays in existing CSAs located on the South Pasture mine and proposed CSAs on the Project site. CF will be able to accomplish the mining and reclamation as proposed. Petitioner's expert, Mr. Palmer, opined that CF had not provided reasonable assurances of sufficient overburden to create the overburden soil slopes on mine faces discussed in the RMR. For the following reasons, his testimony is not credited. He admitted no experience with mining, dragline booms, how draglines cast overburden, or how cast overburden slopes are created, and he mistakenly assumed CF was limited in the transport of overburden to a distance of 330 feet, a figure not supported by the record. Additionally, Mr. Palmer incorrectly assumed that CF would be mining to an average depth of 73.3 feet, when in fact as reflected in the MPP, CF will be mining to an average depth of 40.4 feet, which means the average overburden thickness will be 18.9 feet, far greater than the 11.5 feet he assumed in his calculations. On the other hand, CF witness Wuitschick testified that there would be sufficient overburden to create the overburden seals called for in the RMR. Mr. Blitch, a CF employee with extensive mining experience and familiarity with the Project, testified that transportation of overburden is not limited to 330 feet and confirmed that CF will have more than enough overburden to create the overburden slopes, which are needed only along preserve and property boundaries and the ability to move it where it is required. Rules Requirements With respect to the ERP criteria contained in section 373.413 and rule 40D-4.301, CF has demonstrated, by a preponderance of the evidence, reasonable assurances that the Project: Will not cause adverse water quantity impacts to receiving waters and adjacent lands. Will not cause adverse flooding to on-site or off-site property. Will not cause adverse impacts to existing surface water storage and conveyance capabilities. Will not adversely impact the value of functions provided to fish and wildlife, and listed species including aquatic and wetland dependent species, by wetlands, other surface waters and other water related resources. Will not adversely affect the quality of receiving waters such that the water quality standards will be violated. Will not cause adverse secondary impacts to the water resources. Will not adversely impact the maintenance of surface or ground water levels or surface water flows. Is capable, based on generally accepted engineering and scientific principles, of being effectively performed and of functioning as proposed. Will be conducted by an entity with financial, legal, and administrative capability of ensuring that the activity will be undertaken in accordance with the terms and conditions of the permit, if issued. For the reasons expressed in Finding of Fact 64, a contention by Petitioner that the SPE mine application must be denied because CF failed to submit at hearing a separate document entitled "Construction Surface Water Management Plan" is rejected. This is because this requirement does not apply to facilities like CF that are required to obtain individual NPDES permits that address stormwater discharges. Assuming arguendo that it did apply, the Southwest Florida Water Management District Basis of Review for Environmental Resource Permit Applications (BOR) criteria are designed to be flexible, and other methods can be used to meet the rule objectives. Here, CF submitted numerous reports and studies which have been accepted as being the most persuasive on these issues, and collectively they show that reasonable assurances have been provided that all rule criteria have been satisfied. With respect to the additional public interest and other criteria contained in section 373.414 and rule 40D-4.302 for the protection of water resources and which are applicable to projects located "in, on, or over wetlands or other surface waters," CF has provided, by a preponderance of the evidence, reasonable assurances that the Project will: Not adversely affect the public health, safety, or welfare or the property of others. Not adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. Not adversely affect the flow of water. Not adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity. Be temporary in nature. Not adversely affect the current condition and relative value of functions being performed by areas affected by the Project. Not cause unacceptable cumulative impacts. Will maintain or improve the water quality and the function of the biological systems present at the Project site prior to the commencement of mining activities. The primary goal of the BOR is to meet District water resource objectives of ensuring that the permit will not authorize activities that are harmful to water resources or inconsistent with the public interest. As noted above, however, the criteria are designed to be flexible, and other methods of meeting those objectives will be considered. See BOR §§ 1.1 and 1.3. With respect to phosphate mining reclamation criteria contained in chapter 378 and rule 62C-16.0051, CF has provided, by a preponderance of the evidence, reasonable assurances that the Project will meet the reclamation criteria contained in the rule. The prima facie case provided by CF and the Department at hearing of CF's entitlement to the ERP for the Project was not successfully refuted, as discussed in the foregoing Findings of Fact. The prima facie case provided by CF and the Department at hearing of CF's entitlement to the CRP for the Project was unrefuted. No evidence concerning the reclamation criteria was presented by Petitioner. As set forth in the Order Granting the Motion to Strike and Motion in Limine issued on February 16, 2012, the Petition contained no factual allegations relative to the compliance with applicable regulatory requirements regarding, or potential for harm resulting from, the South Pasture Modifications (as opposed to the ERP or CRP for the Project). Therefore, the allegations relating to the South Pasture Modifications were stricken. The prima facie case provided by CF and the Department at hearing of CF's entitlement to the associated WRP and CRP Modifications for the South Pasture mine (South Pasture Modifications) was not refuted, and Petitioner made no proffer relative to the South Pasture Modifications prior to the close of the evidentiary proceedings. The ruling at hearing to receive in evidence the permit application and the Department's proposed agency action on these two items is reaffirmed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order approving the applications of CF Industries, Inc. DONE AND ENTERED this 30th day of April, 2012, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 2012.
Findings Of Fact This application is a request for a consumptive use permit for two wells located in Pasco County, Florida, within the Pithlachascotee Basin. The subject wells are also located in that area wherein the Board of Governors of the Southwest Florida Water Management District declared a water shortage in Order No. 76-3D, Southwest Florida Water Management District. The application seeks an average daily withdrawal of 95,000 gallons with a maximum daily withdrawal of 360,000 gallons. The use of this water is for public supply involving effluent disposal by on-site percolation and ponding. This-use was existing prior to January 1, 1975 with am average daily withdrawal for 1974 of 74,000 gallons. The testimony presented by staff members of the Southwest Florida Water Management District establishes that the consumptive use for which a permit is sought will not violate any of the criteria set forth in Subsections 163- 2.11(2)(3) or (4), Florida Administrative Code, except that the use may significantly induce salt water encroachment. No evidence was presented showing that the sought for consumptive use will, in fact, significantly induce salt water encroachment. In the twelve month period ending October, 1975, applicant's highest average daily withdrawal was 81,000 gallons. This time frame corresponds to that time frame referred to in paragraph 1 of Water Shortage Order No. 76-3D, Southwest Florida Water Management District. In view of Water Shortage Order No. 76-3D, Southwest Florida Water Management District, the staff recommends granting of the permit for an average daily withdrawal of 81,000 gallons and a maximum daily withdrawal of four times that figure or 234,000 gallons. The staff further recommends imposition of the following conditions: That the permittee shall install totalizer flow meters of the propeller driven type on all withdrawal points covered by the permit with the exception of those wells which are currently ganged together using a single meter. That the permittee shall submit to the District a record of his pumpage for each meter, said pumpage to be read on a monthly basis and submitted quarterly to the District on April 15, July 15, October 15, and January 15 for each preceding calendar quarter. That all individual connections to the system be metered. That the permittee have water samples from all wells permitted analyzed for chloride on a monthly basis and results submitted to the District by April 15, July 15, October 15, and January 15 for each preceding calendar year.
